IRLF 


Treaty-Making  Power 


Slavery  and  the  Race 
Problem  in  the  South 


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Treaty  -  Making  Power 

Slavery  and  the  Race 
Problem  in  the  South 

By 
William  H.  Fleming 


1920 
The  Stratford  Company,  'Publishers 

Boston,  Massachusetts 


Copyright   1920 

The    STRATFORD    CO.,    Publishers 
Boston,    Mass. 


The  Alpine  Press,  Boston,  Mass.,  U.  S.  A. 


Contents 

PAGE 

The  Treaty-Making  Power  of  the  President 

and  Senate 1 

Slavery  and  the  Eace  Problem  in  the  South    35 


e;  Q  9  O  *>  Q 

O  o  c  w  ^  * T1 


ADDRESS   OF   WILLIAM   H.    FLEMING 

BEFORE  THE  GEORGIA  BAR  ASSOCIATION  AT 

WARM  SPRINGS,  GA.,  ON  JUNE  3,  1909. 


THE  TREATY-MAKING  POWER  OF  THE  PRESIDENT  AND 

SENATE:    How  AFFECTED  BY  THE  POWERS 

DELEGATED  TO  CONGRESS,  AND  BY  THE 

POWERS  RESERVED  TO  THE  STATES. 

(From  The  Augusta  Chronicle,  Sunday,  June  6,  1909.) 
Following  is  the  address  of  Hon.  William  H.  Flem- 
ing, at  Warm  Springs,  before  the  annual  meeting  of 
the  Georgia  Bar  Association: 

Mr.  President  and  Gentlemen : 

By  the  highest  authority  in  the  land  we  have  been 
cordially  assured  that  the  South  is  now  a  fully  re- 
stored member  of  the  Union  and  is  to  be  recognized 
and  treated  as  such.  That  being  true,  there  can  be 
no  impropriety  in  a  Southern  man  before  a  Southern 
Bar  Association  discussing  a  national  question. 

The  subject  of  our  discussion  is: 

The  Treaty-Making  Power  of  the  President  and 
Senate;  How  Affected  by  the  Powers  Delegated  to 
Congress,  and  by  the  Powers  Reserved  to  the  States. 

The  recent  crisis  which,  almost  precipitated  inter- 
national estrangement  between  the  United  States  and 
Japan,  by  reason  of  threatened  legislation  by  the  State 


THE    TREATY  -  MAKING    POWER 

of  California  discriminating  against  Japanese  chil- 
dren in  the  public  schools,  in  contravention  of  their 
alleged  rights  under  an  existing  treaty,  imparts  a 
living,  practical  interest  to  our  discussion,  which 
might  otherwise  stand  exposed  to  the  criticism  of 
being  merely  academic. 

A  law  connotes  a  sovereign  and  subjects;  a  treaty 
connotes  two  sovereigns.  One  is  intra-national ;  the 
other  is  inter-national.  Violation  of  a  law  involves 
disobedience,  with  the  consequent  penalties  pre- 
scribed. Violation  of  a  treaty  involves  breach  of 
faith,  with  such  consequent  protest,  retaliation,  or 
war,  as  the  aggrieved  nation  may  be  willing  and  able 
to  make. 

As  between  the  nations  themselves,  the  stipulations 
of  a  treaty  rest  in  contract.  But  as  between  each  na- 
tion and  its  own  subjects,  those  stipulations  have  the 
status  of  positive  law  throughout  its  whole  territory 
—  unless  that  status  be  modified  by  the  political  struc- 
ture of  the  government.  Hence  the  pertinency  of  in- 
quiring into  our  fundamental  law  on  this  subject. 

HISTORICAL  DEVELOPMENT  OF  TREATY-PROVISIONS  IN 
CONSTITUTION. 

When  our  Revolutionary  fathers  met  in  the  Federal 
Convention  of  1787  to  frame  our  Constitution,  there 
was,  in  the  midst  of  great  diversity  of  opinion  on 
many  other  matters,  entire  unanimity  on  lodging  the 
treaty-making  power  in  some  department  of  the  na- 

[2] 


THE    TREATY  -  MAKING    POWER 

tional  government  to  the  complete  exclusion  of  the 
states. 

That  proposition  was  unanimously  agreed  to  as 
early  as  May  31st,  the  second  business  day  after  the 
Committee  of  the  Whole  began  its  work.  It  was  af- 
firmed in  the  regular  convention  without  dissent  on 
August  25th  and  reaffirmed  without  dissent  on  Sep- 
tember 6th. 

And  when,  after  weeks  and  months  of  arguments, 
amendments,  and  re-amendments,  the  heterogeneous 
mass  of  political  material  had  been  combined  into  sys- 
tem and  wrought  into  shape  by  the  Committee  of  De- 
tail, and  the  almost  finished  instrument  came  at  last 
from  the  hands  of  the  * '  Committee  of  Stile  &  Arrange- 
ment7' (as  Mr.  Madison  writes  it)  and  received  the 
final  approval  of  the  convention,  it  contained  the  fol- 
lowing provisions  on  the  subject  of  treaties: 

No  state  shall  "enter  into  any  treaty,  alliance  or 
confederation."  Art.  1,  Sec.  10,  Par.  1. 

"He  (the  President)  shall  have  power  by  and 
with  the  advice  and  consent  of  the  Senate  to  make 
treaties,  provided  two-thirds  of  the  senators  present 
concur."  Art.  2,  Sec.  2,  Par.  2. 

"This  Constitution  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof,  and 
all  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States  shall  be  the  supreme 
law  of  the  land."  Art.  6,  Sec.  2. 

Indeed  the  looser  Articles  of  Confederation  which 
became  operative  March  1,  1781,  contain  substan- 

[3] 


THE    TREATY  -  MAKING   POWER 

tially  similar  provisions  against  state  action  in  the 
making  of  treaties. 

But  although  there  was  such  oneness  of  opinion 
in  regard  to  vesting  the  treaty-making  power  in  the 
Federal  government  as  against  the  states — resulting 
from  manifest  political  propriety  and  necessity  —  yet 
there  was  serious  difference  of  opinion  as  to  just  what 
department  of  the  Federal  government  should  be  in- 
trusted with  this  high  prerogative  of  sovereignty. 

The  draft  of  the  Constitution  as  it  came  to  the 
regular  convention  from  the  Committee  of  the  Whole 
on  August  6th  lodged  the  treaty-making  power  ex- 
clusively in  the  Senate  acting  by  majority  vote,  and 
there  it  remained  until  September  7th,  ten  days  before 
adjournment,  when  the  following  substitute  provision 
was  adopted : 

* t  The  President  by  and  with  the  advice  and  consent 
of  the  Senate  shall  have  power  to  make  treaties  —  but 
no  treaty  shall  be  made  without  the  consent  of  two- 
thirds  of  the  members  present." 

This  verbiage  was  condensed  and  improved  by  the 
Committee  on  Style  and  Arrangement  to  read  as  it 
now  stands: 

"He  shall  have  power  by  and  with  the  advice 
and  consent  of  the  Senate  to  make  treaties,  provided 
two-thirds  of  the  senators  present  concur." 

The  requirement  of  a  two-thirds  vote  was  doubtless 
based  upon  the  same  considerations  of  public  policy 
and  local  jealousy  which  necessitated  the  provision  in 

[4] 


THE    TREATY  -  MAKING    POWER 

the  Articles  of  Confederation  that  the  votes  of  nine 
states  should  be  required  to  ratify  a  treaty. 

Judging  from  the  debates  in  the  convention,  the 
exclusion  of  the  House  from  participation  in  treaty- 
making  was  not  based  on  any  principle  of  division  of 
powers,  but  arose  solely  from  the  advantage  of  hav- 
ing a  comparatively  small  body  to  deal  with  the  class 
of  subjects  that  often  required  secrecy  for  successful 
negotiation. 

Had  the  fathers  understood  the  mysteries  of 
telepathy,  and  foreseen  how  easy  it  would  be  for  the 
modern  newspaper  reporter  to  possess  himself,  by 
some  subtle  method  of  thought-transference,  of  all 
the  secrets  of  executive  sessions  of  the  Senate,  no 
doubt  they  would  have  attached  less  importance  to 
the  plea  of  necessity  for  excluding  the  more  numerous 
branch  of  the  legislature  from  these  supposedly  secre' 
sessions. 

In  these  secret  executive  sessions,  the  Vice-Presi- 
dent  retains  the  chair,  thus  establishing,  as  was  sup- 
posed by  some,  a  closer  nexus  between  the  President 
and  the  Senate. 

In  the  convention  on  September  7th  Elbridge 
Gerry  opposed  the  provision  making  the  Vice-presi- 
dent ex-officio  president  of  the  Senate.  He  contended 
that  the  close  intimacy  that  must  subsist  between 
the  President  and  the  Vice-President  makes  it  ' '  abso- 
lutely improper."  But  on  that  issue,  he  was  easily 
out- voted  —  the  logic  of  his  contention  being  more 
than  met  by  the  wit  of  Gouverneur  Morris,  who  ob- 

[5] 


THE    TREATY  -  MAKING   POWER 

served,   "The  Vice-President  then  will  be  the  first 
heir-apparent  that  ever  loved  his  father." 

Having  thus  briefly  traced  the  historical  setting  of 
the  constitutional  provisions  touching  the  treaty- 
making  power,  let  us  now  inquire  to  what  extent  that 
power  is  affected  by  other  powers  delegated  to 
Congress. 

TREATY-POWER  AS  AFFECTED  BY  POWERS  DELEGATED 
TO  CONGRESS. 

It  will  be  observed  that  the  supreme  law  of  the  land 
is  declared  to  be:  First,  the  Constitution;  second, 
the  Statutes,  and  third,  the  Treaties.  Whether  or 
not  there  be  any  significance  inter  sese  in  this  order 
of  priority,  of  course  the  Constitution  must,  for  other 
controlling  reasons,  outrank  the  treaties  as  well  as 
the  statutes.  Valid  treaties  and  valid  statutes  are 
each  supreme  in  their  own  sphere,  provided  those 
spheres  do  not  overlap.  But  suppose  there  be  a  con- 
flict between  a  statute  and  a  treaty,  which  must  yield  ? 

Only  two  departments  of  the  government,  the  Presi- 
dent and  the  Senate  (by  two-thirds  vote),  participate 
in  the  making  of  a  treaty.  Three  departments,  the 
House,  the  Senate  and  the  President,  participate  in 
the  making  of  a  statute,  except  in  case  of  a  veto,  when 
two-thirds  of  the  House  and  Senate  are  required. 

The  House  is  necessary  to  every  statute ;  the  Presi- 
dent is  not.  The  President  is  necessary  to  every 
treaty;  the  House  is  not.  This  fact  of  the  partici- 

[6] 


THE    TREATY  -  MAKING    POWER 

pation  of  the  House,  the  great  popular  branch  of  the 
government,  would  of  itself  seem  sufficient  to  give 
controlling  effect  to  a  statute  as  against  a  treaty. 

In  this  connection,  there  is  another  consideration 
worthy  of  mention,  based  on  our  constitutional  method 
of  making  laws  and  treaties.  Two-thirds  of  the  sen- 
ators must  concur  to  make  a  treaty.  Therefore,  as- 
suming the  same  attendance  in  numbers  and  personnel 
at  each  vote,  it  follows  that  no  bill  in  conflict  with 
that  treaty  could  pass  the  Senate  and  become  a  statute 
unless  the  opinions  of  some  of  the  senators  constitut- 
ing that  two-thirds  should  undergo  a  change. 

The  number  of  changes  thus  necessary  to  enact  a 
subsequent  statute  in  conflict  with  a  prior  treaty, 
would  be  such  a  number  as  would  convert  an  affirma- 
tive two-thirds  into  a  negative  majority,  that  is  a  half 
plus  one.  Or,  in  other  words,  the  number  of  changes 
would  be  one-sixth  the  entire  vote  plus  one — this  addi- 
tional one  vote  being  necessary  because  a  statute  must 
receive  a  majority  vote,  that  is  to  say,  at  least  one 
more  than  a  half. 

Assuming  a  full  Senate  of  ninety-two  members 
present,  and  the  passage  of  a  treaty  by  sixty-two  ayes 
to  thirty  noes,  then  the  passage  of  the  conflicting 
statute  by  forty-seven  ayes  to  forty-five  noes  would 
indicate  a  change  of  opinion  by  seventeen  members 
away  from  the  treaty. 

We  could  scarcely  assume  that  such  a  change  could 
take  place  except  for  urgent  public  reasons,  that 

[7] 


THE    TREATY  -  MAKING    POWER 

should  properly  be  allowed  to  have  their  due  weight 
under  the  Constitution. 

STATUTE  PREVAILS  OVER  TREATY. 

That  a  subsequent  statute  does  prevail  over  a  prior 
treaty  has  been  uniformly  held  by  our  Supreme  Court. 
Such  was  the  ruling  in  2  Pet.  253,  314.  112  U.  S.  580. 
124  U.  S.  190.  130  U.  S.  581.  149  U.  S.  698.  175 
U.  S.  460. 

The  pith  of  the  reasoning  by  which  that  conclusion 
was  reached  is  well  expressed  in  the  following  extract 
from  the  opinion  delivered  by  Justice  Field  in  130 
U.  S.  600:  "By  the  Constitution,  laws  made  in  pur- 
suance thereof,  and  treaties  made  under  the  authority 
of  the  United  States  are  both  declared  to  be  the  su- 
preme law  of  the  land,  and  no  paramount  authority 
is  given  to  one  over  the  other.  The  treaty,  it  is  true, 
is  in  its  nature  a  contract  between  nations,  and  is 
often  merely  promissory  in  its  character,  requiring 
legislation  to  carry  its  stipulations  into  effect.  Such 
legislation  will  be  open  to  future  repeal  or  amend- 
ment. If  the  treaty  operates  by  its  own  force,  and 
relates  to  a  subject  within  the  power  of  Congress,  it 
would  be  deemed,  in  that  particular,  only  the  equiva- 
lent of  a  legislative  act,  to  be  repealed  or  modified  at 
the  pleasure  of  Congress." 

The  soundness  of  this  doctrine  seems  never  to  have 
been  questioned.  But  the  opinion  of  the  court  con- 
tained another  sentence  immediately  following  those 

[8] 


THE    TREATY  -  MAKING    POWER 

above  quoted,  and  in  these  words:    "The  last  expres- 
sion of  the  sovereign  will  must  control." 

CAN  A  TREATY  ANNUL  A  STATUTE? 

If  this  be  the  correct  construction  of  the  Con- 
stitution, then  not  only  can  an  act  of  Congress  annul 
a  prior  treaty,  but  a  treaty  can  annul  a  prior  act  of 
Congress. 

This  doctrine  of  a  subsequent  treaty  taking  prece- 
dence over  a  prior  act  of  Congress,  is  stoutly  com- 
bated by  Judge  Tucker  in  his  great  work  on  the 
Constitution,  and  he  calls  attention  to  the  fact  that 
the  deliverance  of  the  court  last  quoted  was  an  obiter 
dictum.  The  issue  raised  by  the  record  in  that  case 
was  whether  a  subsequent  act  of  Congress  repealed 
a  prior  treaty,  and  that  was  decided  in  the  affirmative. 
The  obiter  dictum  consisted  in  the  declaration  that 
a  subsequent  treaty  would  repeal  a  prior  act  of 
Congress. 

But  on  further  investigation  it  appears  that  this 
same  obiter  was  announced  in  124  U.  S.  190,  in  these 
plain  words :  '  *  The  one  last  in  date  will  control. ' ' 

Prior  to  that  time,  the  court  had  said  in  11  Wal- 
lace, 621,  "A  treaty  may  supersede  a  prior  act  of 
Congress. ' ' 

And  even  as  early  as  1829,  the  court  in  2  Pet.  315, 
said  referring  to  a  treaty:  "Had  such  been  its  lan- 
guage, it  would  have  acted  directly  on  the  subject, 
and  would  have  repealed  those  acts  of  Congress  which 
were  repugnant  to  it." 

Our  dual  system  of  state  and  Federal  governments 
[9] 


THE    TREATY  -  MAKING    POWER 

has  made  us  familiar  with  the  principle  of  two  sepa- 
rate political  powers  acting  together,  each  supreme  in 
its  own  sphere.  But  to  hold  that  two  such  powers 
may  have  equal  paramountcy  in  the  same  sphere  in- 
volves some  logical  inconsistencies,  and  constitutes  in- 
deed a  novel  combination. 

The  spectacle  of  a  see-saw  between  treaty  and 
statute,  each  above  the  other,  according  to  posterior 
date,  could  not  be  conducive  to  the  stability  of  our 
laws,  nor  flattering  to  our  national  pride. 

No  case  has  yet  been  presented  to  the  Supreme 
Court  directly  involving  the  issue  of  a  repeal  of  a 
statute  by  a  subsequent  treaty,  although  the  court 
has  repeatedly  committed  itself  by  obiter  dicta  to 
the  upholding  of  such  a  repeal. 

The  political  departments  of  the  government  have 
wisely  avoided  making  such  an  issue  for  the  judiciary 
to  decide.  The  identical  question  came  before  Con- 
gress in  1815  in  connection  with  the  treaty  of  Com- 
merce and  Navigation,  which  exempted  British  ton- 
nage and  goods  imported  in  their  bottoms,  from  the 
operation  of  an  existing  Federal  statute  laying  addi- 
tional duties  on  such  tonnage  and  goods. 

The  treaty  had  been  already  proclaimed,  but  the 
Senate,  anticipating  some  obstructive  action  by  the 
House,  passed  a  bill  and  sent  it  to  the  House  for  con- 
currence, declaring  of  no  force  or  effect  any  act  or 
acts  contrary  to  the  provisions  of  the  treaty  —  thus 
showing  that,  in  the  opinion  of  the  Senate,  it  was  at 
least  wise,  if  not  essential,  that  a  treaty  conflicting 

[10] 


THE    TREATY  -  MAKING    POWER 

with  a  prior  statute  should  itself  be  supported  by  a 
statute  repealing  that  prior  statute. 

It  is  a  significant  fact  that,  in  the  debates  on  this 
bill  in  connection  with  the  treaty  of  1815,  John  C. 
Calhoun,  then  a  member  of  the  House,  took  the  posi- 
tion that  the  treaty  was  all  sufficient  and  needed  no 
statute  to  support  its  repeal  of  the  duties  —  though 
it  is  proper  to  add  that  he  based  his  argument  in 
part  on  the  ground  that  a  law  had  been  passed  dur- 
ing the  previous  session  providing  for  a  repeal  of 
these  duties,  to  take  effect  upon  the  repeal  of  similar 
duties  by  England,  which  mutual  repeal  he  claimed 
had  been  effected  by  the  treaty. 

But  the  power  of  annulment  by  Congress  is  not 
the  only  means  in  reach  of  the  House,  to  make  its  re- 
straining influence  felt  in  the  matter  of  treaties. 
The  provision  of  the  Constitution  that  "no  money 
shall  be  drawn  from  the  treasury,  but  in  consequence 
of  appropriations  to  be  made  by  law,"  enables  the 
House  by  withholding  appropriations  to  effectually 
paralyze  the  arm  of  the  treaty-making  power  in  all 
instances  where  money  is  necessary  to  carry  it  into 
effect.  The  same  would  be  true  of  any  treaty  which 
involved  the  exercise  of  other  powers  to  which  the 
assent  of  the  House  is  necessary. 

MORAL  OBLIGATIONS  OP  HOUSE  TOWARD  EFFECTUATING 
A  TREATY. 

Just  ho\\*  far  the  House  is  under  a  moral  obliga- 
tion to  effectuate  a  treaty  by  concurring  in  appropria- 


THE    TREATY  -  MAKING    POWER 

tions,  or  other  necessary  measures,  is  a  question  of 
ethics  for  the  individual  members  of  the  House. 

To  hold  this  obligation  imperative  in  all  cases 
would  be  to  deprive  a  member  of  the  exercise  of  that 
discretion  and  judgment  with  which  he  is  clothed  as 
a  representative  of  the  people.  To  hold  that  he  can 
indifferently  recognize  or  renounce  that  obligation, 
would  be  to  place  too  low  a  value  on  the  national  faith 
as  pledged  by  the  President  and  Senate.  The  ten- 
dency of  the  House  to  keep  the  national  faith  when- 
ever pledged  by  the  President  and  the  Senate,  will 
properly  and  necessarily  increase  as  the  power  of  in- 
ternational public  opinion  grows  stronger,  which  it 
must  surely  do  under  the  beneficent  influence  of  the 
Hague  Tribunal. 

Whatever  criticism  might  arise  in  the  domain  of 
international  ethics  against  the  action  of  the  law- 
making  department  of  our  government  in  repealing, 
or  in  refusing  to  effectuate,  a  treaty,  neither  the  mo- 
tive nor  the  propriety  nor  the  wisdom  of  that  action 
could  ever  be  called  in  question  in  the  courts  of  our 
country.  130  U.  S.  602. 

But  although  Congress  may  annul  a  treaty,  it  can 
not  destroy  or  impair  transferable  property  rights 
that  have  already  become  vested  under  the  treaty. 
130  U.  S.  609. 

TREATY-POWER  AS  AFFECTED  BY  POWERS  RESERVED  TO 
THE  STATES. 

We  come  now  to  consider  how  far  the  treaty-making 
power  is  affected  by  the  powers  reserved  to  the  states. 

[12] 


THE    TREATY  -  MAKING    POWER 

And  here  we  find  ourselves  entering  that  twilight 
zone  between  state  and  Federal  authority,  where 
many  of  the  ablest  men  of  our  country  have  followed 
divergent  paths  in  search  of  more  light. 

In  the  first  place,  it  is  clear  that  no  authority  to 
make  any  sort  of  a  treaty  with  a  foreign  power  re- 
mains in  the  state.  The  states  as  such,  have  no  for- 
eign relations.  There  are  forty-six  flags  at  home,  but 
only  one  flag  abroad ;  the  flag  of  the  Union  — *  *  the 
broad  ensign  of  the  Republic,  now  known  and  honored 
throughout  the  earth,  still  full  high  advanced." 

In  the  second  place,  let  it  be  observed  that  in  con- 
stitutional construction,  the  phrase,  "the  reserved 
rights  of  the  states, ' '  has  more  particular  reference  to 
the  enumerated  division  of  powers  between  the  states 
on  the  one  hand,  and  the  Federal  government  on  the 
other. 

When  our  dual  system  of  state  and  national  govern- 
ments was  being  worked  out  in  the  convention  of 
1787,  it  was  not  from  mere  choice  that  powers  dele- 
gated to  Congress  were  enumerated;  it  was  a  matter 
of  necessity  from  the  nature  of  the  dual  system.  It 
was  not  necessary  to  specify  both  the  delegated  and 
the  reserved  powers.  But  it  was  necessary  to  specify 
one  or  the  other  of  these  classes.  It  was  practically 
impossible  to  enumerate  the  reserved  powers,  and 
hence  the  easier  course  was  adopted  of  enumerating 
the  delegated  powers. 

But  as  to  treaty-making,  there  was  no  enumeration 
of  powers  suggestive  of  others  reserved. 

[13] 


THE    TREATY  -  MAKING    POWER 

Moreover,  the  Tenth  Amendment  provides  that 
"The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  ~by  it  to  the  states, 
are  reserved  to  the  states  respectively  or  to  the  people. ' ' 
And  treaty-making  is  one  of  those  powers  dealt  with 
in  the  Constitution  expressly  "prohibited  by  it  to  the 
states/' 

It  will  therefore  be  seen  that  the  particular  enum- 
eration of  powers  delegated  to  Congress  in  the  Con- 
stitution has  reference  only  to  intra-national  and  not 
to  inter-national  relations,  and  consequently  can  have 
no  direct  bearing  on  the  subject  of  treaties,  all  of 
which  deal  necessarily  with  foreign  relations. 

It  was  through  failure  to  observe  this  proper  rule 
of  construction,  that  the  Supreme  Court  of  California, 
in  1850,  fell  into  the  obvious  error  of  holding  that 
a  treaty  is  supreme  only  when  it  is  made  * '  in  rela- 
tion to  those  subjects  the  jurisdiction  over  which  has 
been  exclusively  intrusted  to  Congress."  1  Cal.  232. 

The  entire  contractual  power  of  treaty-making 
having  been  delegated,  it  follows  that  nothing  that  is 
legitimately  the  subject  of  a  treaty  remains  within 
the  exclusive  power  of  a  state.  The  treaty-making 
power  of  the  President  and  the  Senate  being  thus  ex- 
clusive the  vital  question  arises:  what  is  its  constitu- 
tional sphere  of  operation? 

On  broad  principles  of  construction,  it  must  be  held 
that  the  treaty-making  power  being  a  creature  of  the 
Constitution,  can  not  destroy  its  creator,  nor  substan- 
tially change  the  structure  of  the  government,  state  or 

[14] 


THE    TREATY  -  MAKING    POWER 

national,  as  builded  by  the  Constitution,  nor  violate 
any  express  inhibitions  of  the  Constitution,  nor  per- 
vert the  purpose  of  its  own  creation  by  attempting 
to  deal  with  subjects  not  properly  within  the  range 
of  treaty-making  among  nations. 

The  Supreme  Court  was  made  the  protector  of  the 
Constitution,  and  it  has  not  hesitated  when  occasion 
arose  to  invalidate  acts  of  Congress  that  invaded  the 
sphere  of  the  reserved  rights  of  the  states.  We  have 
also  seen  that  it  has  declared  treaty  provisions  an- 
nulled or  repealed  by  subsequent  acts  of  Congress. 
But  there  seems  to  have  been  no  case  in  our  history, 
where  a  treaty  has  been  declared  void  in  the  first  in- 
stance by  the  courtr  on  the  ground  that  the  treaty- 
making  department  had  exceeded  its  powers  by  em- 
bracing a  subject  outside  of  its  sphere.  And  yet, 
it  would  seem  clear  that  such  would  be  the  duty  of  the 
court  in  a  proper  case  made  involving  private  rights. 

TREATY-POWER  AND  POLICE  POWERS. 

But  the  question  that  still  urges  itself  is  this:  Are 
there  any  powers  that  a  state  can  exercise  in  deroga- 
tion of  a  treaty? 

If  so,  they  must  be  found  in  that  undefined  and 
almost  undefinable  region  of  jurisprudence,  called, 
for  lack  of  a  better  name,  "Police  Powers." 

Congress  possessing  only  delegated  powers,  with 
the  accompanying  right  of  adopting  such  means  as 
are  proper  and  necessary  for  their  exercise,  and  no 
police  powers  having  been  delegated,  it  follows  that 

[15] 


THE    TREATY  -  MAKING    POWER 

as  against  the  states  Congress  can  not  act  within  this 
sphere  of  internal  police,  except  when  necessary  to 
carry  into  operation  some  of  its  admitted  powers  : — 
such,  for  instance,  as  that  to  regulate  commerce  be- 
tween the  states  and  foreign  nations.  Congress  has 
no  police  powers  as  such,  except  in  the  District  of 
Columbia  and  the  territories,  and  over  lands  owned 
by  the  Federal  government  within  a  state. 

Now  the  Supreme  Court  has  time  and  again  de- 
cided that  while  states  can  exercise  their  police  pow- 
ers as  against  Congress,  they  must  do  so  in  such  a 
manner  as  not  to  impair  the  exercise  by  Congress  of 
powers  delegated  to  it. 

Wherefore,  inasmuch  as  a  state  must  so  use  its 
police  power  as  not  to  hamper  Congress,  the  law- 
making  power  of  the  Federal  government,  in  the  ex- 
ercise of  functions  committed  to  it,  notwithstanding 
the  express  reservations  as  against  Congress,  the  con- 
clusion would  seem  to  follow  with  even  greater 
force  that  a  like  restriction  must  attach  to  a  state 
in  the  use  of  its  police  powers  as  against  the  treaty- 
making  power  in  the  exercise  of  functions  committed 
to  it  —  because  as  to  treaty-making,  there  were  no 
express  reservations  to  the  states. 

And  thus  we  come  back  again  to  the  same  question 
in  another  form:  What  are  the  legitimate  functions 
of  the  treaty-making  power? 

In  1843,  the  Supreme  Court  of  New  Hampshire  de- 
clared: "The  police  power  of  the  several  states,  re- 
garded as  separate  governments,  is  not  a  subject 

[16] 


THE    TREATY  -  MAKING    POWER 

matter  to  which  the  treaty-making  power  extends." 
13  New  Hampshire,  576.  And  we  have  already  seen 
that  the  Supreme  Court  of  California  limited  the 
treaty-power  to  those  subjects  which  had  been  in- 
trusted to  the  exclusive  jurisdiction  of  Qongress. 

But  the  Supreme  Court  of  the  United  States,  speak- 
ing through  Justice  Field,  in  133  U.  S.  p.  266,  says 
that  the  treaty-power  extends  "to  all  proper  subjects 
of  negotiation"  between  our  government  and  the 
governments  of  other  nations.  After  stating  that  a 
treaty  can  not  do  what  the  Constitution  forbids,  nor 
change  the  nature  of  the  national  government,  nor  of 
the  state  government,  nor  cede  any  portion  of  the 
territory  of  a  state  without  its  consent,  Justice  Field 
adds :  * '  But  with  these  exceptions,  it  is  not  perceived 
that  there  is  any  limit  to  the  questions  that  can  be 
adjusted  touching  any  matter  which  is  properly  the 
subject  of  negotiation  with  a  foreign  country." 

So  far  as  the  inheritance  by  aliens  of  property  in 
a  state  is  concerned,  the  Supreme  Court  has  decided 
emphatically  and  repeatedly  that  a  treaty  is  para- 
mount to  a  state  law.  3rd  Dallas  199;  7th  Cranch 
627 ;  2nd  Wheaton  259 ;  4th  Wheaton  453 ;  9th  Whea- 
ton  488;  10th  Wheaton  181;  100  U.  S.  483;  133 
U.  S.  258. 

In  1857  when  William  L.  Marcy  was  Secretary  of 
State,  Attorney-General  Caleb  Gushing,  in  construing 
the  British  treaty  of  1794,  gave  a  written  opinion  in 
which  he  used  the  following  language:  "All  impedi- 
ments of  alienage  are  absolutely  levelled  with  the 

[17] 


THE    TREATY  -  MAKING    POWER 

ground,  despite  the  laws  of  the  state. "  Op.  Atty.- 
General,  Vol.  8,  p.  417. 

On  the  other  hand,  Judge  Tucker  questions  the 
soundness  of  this  conclusion  as  to  treaty  regulation 
of  property-descent  to  aliens  against  state  laws,  and 
terms  it  "an  extreme  view  of  the  treaty-power." 
Tucker's  Const.  U.  S.  732. 

But  the  long  and  unbroken  line  of  decisions  by  the 
Supreme  Court  leaves  no  doubt  that  it  is  now  estab- 
lished law  in  the  United  States  that  the  treaty-making 
power  can  nullify  state  laws  affecting  the  inheritance 
of  property  by  aliens.  Such  construction  is  backed  up 
by  a  century  of  historical  recognition. 

This  established  principle  is  big  with  logical  con- 
sequences. 

Because,  since  Congress  can  claim  no  right  to  regu- 
late the  descent  of  property  in  a  state,  we  herein  see : 
first,  the  treaty-making  power  doing  things  inside  of 
a  state  which  it  is  beyond  the  power  of  Congress  to 
do;  and,  second,  we  see  the  annulment  by  the  treaty- 
making  power  of  a  police  law  of  a  state.  This  latter 
conclusion  must  follow,  unless  it  be  contended  that  the 
regulation  of  the  descent  of  property  is  not  within  the 
meaning  of  that  comprehensive  term  "Police  Powers.'' 
But  this  contention  could  scarcely  be  maintained  in 
the  face  of  the  specific  language  of  Justice  McLean 
in  5th  Howard  588,  that  the  regulation  of  "the  trans- 
mission of  estates  real  and  personal"  is  part  of  the 
state  police,  and  the  broader  language  of  Chief  Justice 
Taney  in  the  same  case,  that  the  police  powers  "are 

[18] 


THE    TREATY  -  MAKING    POWER 

nothing  more  nor  less  than  the  powers  of  government 
inherent  in  every  sovereignty  *  *  *  that  is  to  say 
*  *  *  the  power  to  govern  men  and  things."  5th 
Howard  582. 

It  being  established  that  there  are  some  police 
powers  of  a  state  which  a  treaty  may  directly  nullify, 
it  remains  for  us  to  ask:  Are  there  any  state  police 
powers  not  subject  to  such  nullification? 

According  to  repeated  adjudications,  treaties  can 
abolish  all  state  discriminations  against  aliens  in  the 
matter  of  inheriting  property ;  can  they  do  the  same 
in  all  other  matters  ?  —  for  instance,  in  the  matter  of 
marriage  ? 

No  case  involving  such  an  extreme  test  as  this 
has  yet  been  presented.  But  it  would  be  very  dif- 
ficult in  the  face  of  past  decisions  to  sustain  the  para- 
mountcy  of  a  state  law  on  the  mere  plea  that  the 
regulation  of  marriage  was  a  reserved  police  power. 

So  far  as  an  invasion  of  the  police  power  is  con- 
cerned, every  argument  for  the  regulation  of  prop- 
erty inheritance  would  seem  to  apply  to  the  regula- 
tion of  marriage  contracts.  If  any  distinction  at  all 
can  be  drawn,  it  would  have  to  be  between  property 
rights  and  personal  rights. 

The  cases  so  far  adjudicated  refer  to  property 
rights,  so  that  the  issue  as  to  personal  rights  may  be 
considered  as  still  open  on  the  record. 

Possibly  a  more  hopeful  defense  against  a  treaty 
nullifying  a  state  law  on  so  domestic  and  personal  a 
subject  as  marriage  could  be  made  along  the  line  of 

[19] 


THE    TREATY  -  MAKING    POWER 

showing  that  the  regulation  of  the  marriage  relation 
is  distinctly  beyond  the  range  of  those  objects 
" usually  regulated  by  treaty/'  to  borrow  the  words 
of  Mr.  Jefferson. 

However,  we  need  apprehend  no  practical  danger 
from  this  particular  phase  of  our  theoretical  discus- 
sion. 

JAPANESE  QUESTION  IN  CALIFORNIA. 

Let  us  now  apply  the  principles  we  have  deduced 
to  the  concrete  case  of  the  recent  Japanese  question 
in  California. 

Several  anti-Japanese  bills  were  introduced  in  the 
state  legislature.  We  will  select  the  one  most  clearly 
within  the  recognized  police  powers,  namely,  the  bill 
providing  separate  schools  for  the  Japanese  children, 
and  prohibiting  them  from  attending  the  regular 
schools  for  white  children. 

On  March  21st,  1895,  a  treaty  negotiated  in  1894 
between  Japan  and  the  United  States  was  proclaimed 
to  continue  during  a  period  of  twelve  years  from 
July  17,  1899.  This  treaty  is  entitled,  "A  Treaty 
of  Commerce  and  Navigation,"  and  contains  what  is 
now  the  customary  provision,  known  as  the  "Most 
Favored  Nation  Clause,"  according  to  which,  the 
subjects  of  Japan  are  entitled  to  all  of  the  privileges 
relating  to  trade  and  commerce,  which  may  be 
granted  to  subjects  of  the  most  favored  nation. 

The  administration  at  Washington  took  the  posi- 
tion that  the  proposed  law  of  California  excluding 

[20] 


THE    TREATY  -  MAKING    POWER 

Japanese  children  from  the  schools  —  while  admitting 
English,  French,  German  and  other  white  children  • — 
was  a  discrimination  against  Japanese  children,  and 
a  violation  of  their  rights  under  the  treaty  that  went 
into  effect  in  1899. 

Whether  this  commercial  treaty  actually  embraced 
such  a  subject  as  school  attendance,  would  seem  to 
be  open  to  some  doubt.  But  that  particular  question 
does  not  come  within  the  scope  of  our  immediate 
inquiry.  We  will  assume  for  the  sake  of  the  argu- 
ment that  the  treaty  does  embrace  school  attendance. 

It  was  only  by  the  earnest  appeal  and  vigorous  ac- 
tion of  the  President  and  Secretary  of  State  that  the 
passage  of  this  bill  by  the  California  legislature  was 
prevented. 

But  suppose  the  bill  had  been  enacted  into  law  — 
which  would  have  been  paramount,  the  Federal  treaty, 
or  the  state  law? 

The  Supreme  Court  in  113  U.  S.  31,  decided  Bpe- 
cifically  "that  regulations  to  promote  *  *  *  educa- 
tion, etc."  were  embraced  within  the  police  power  of 
a  state.  But  we  have  also  seen  that  the  mere  fact 
that  a  state  law  is  within  the  police  power  is  not  of 
itself  a  protection  against  the  treaty-making  power. 

To  whatever  extent,  if  at  all,  such  a  law  can  be 
said  to  interfere  with  property  rights,  it  would,  of 
course,  be  void  against  the  treaty  under  decisions  of 
the  court  already  cited. 

But  aside  from  that  view,  the  proposed  state  law 
was  a  premeditated  indignity  and  insult  to  a  proud 

[21] 


THE    TREATY  -  MAKING    POWER 

and  militant  nation.  To  allow  educational  privileges 
to  the  subjects  of  vanquished  Russia,  and  deny  those 
same  privileges  to  subjects  of  victorious  Japan,  when 
both  held  the  same  treaty  rights,  would  be  an  invid- 
ious distinction  well  calculated  to  arouse  resentment 
or  retaliation  that  might  easily  lead  to  war. 

But  there  could  be  no  war  between  Japan  and 
California.  The  first  step  of  an  invading  soldier 
on  the  soil  of  California  would  be  the  signal  for 
national  hostilities.  The  whole  power  of  the  nation 
must  go  to  her  defense  because  our  Constitution  sol- 
emnly guarantees  that  "The  United  States  *  *  * 
shall  protect  each  of  them  (the  states)  against  in- 
vasion." Art.  4,  Section  4. 

Can  one  self-willed  state  be  permitted  to  force  the 
whole  nation  into  war  against  its  will,  and  for  a  cause 
too,  which  the  nation  may  believe  to  be  a  breach  of 
plighted  national  faith?  To  answer  this  question  in 
the  affirmative  would  be  to  seriously  impeach  not  only 
the  foresight,  but  the  common  sense  of  the  statesmen 
who  framed  our  Constitution. 

If  such  an  issue  should  ever  be  presented  to  the 
Supreme  Court,  we  could  scarcely  doubt  that  the 
treaty  would  be  sustained  as  against  the  state  law. 

Nor  need  the  court  experience  any  great  difficulty 
in  formulating  an  argument  upholding  such  an 
opinion.  For,  it  is  the  essence  of  the  police  power  of 
a  state  that  its  effect  is  substantially  intra-state  or 
local.  Now  if  the  effect  of  the  exercise  of  a  police 
power  extends  beyond  the  state  and  materially  inter- 

[22] 


THE    TREATY  -  MAKING    POWER 

feres  with  national  foreign  relations,  the  power  BO 
exercised  ceases  thereby  and  therein  to  be  a  mere 
police  power,  for  the  very  reason  that  it  operates  sub- 
stantially upon  foreign  relations,  and  therefore  comes 
within  the  sphere  of  the  treaty-making  power. 

And  this  would  be  true,  regardless  of  the  possible 
distinction  heretofore  suggested  between  property 
rights  and  personal  rights. 

Let  this  then  stand  as  our  formulated  conclusion 
of  the  whole  matter:  In  a  conflict  between  a  Federal 
treaty  and  a  state  law  if  the  foreign  relations  of  the 
nation  are  substantially  involved,  the  treaty  must  be 
paramount. 

In  deciding  the  question  whether  foreign  relations 
are  substantially  involved,  it  is  manifest  that  no  fixed 
rule  can  be  laid  down.  Each  case  would  have  to  stand 
or  fall  by  its  own  facts.  But  this  much  we  know, 
that  the  growing  intimacy  of  the  nations  of  the  world, 
will  necessarily  result  in  extending  the  functions  of 
treaty-making  over  a  greater  variety  of  subjects  and 
details. 

JUST  RIGHTS  OP  STATES  NOT  IMPERILED  BY  TREATY- 
POWER. 

At  first  thought,  the  conclusion  at  which  we  have 
arrived  in  support  of  the  treaty-making  power  might 
appear  to  be  a  just  cause  for  grave  concern  to  those 
of  us  who  believe  that  the  future  welfare  of  our 
country  depends  largely  upon  preserving  in  its  in- 

[23] 


THE    TREATY  -  MAKING    POWER 

tegrity  our  dual  system  of  local  and  national  gov- 
ernments. 

But  this  fear  is  more  fanciful  than  real.  Treaties 
are  matters  of  mutual  contract  between  sovereigns. 
Neither  party  to  a  treaty  would  be  willing  to  put 
aliens  upon  a  higher  plane  of  privilege  than  its  own 
citizens  in  respect  to  any  matter  whatever.  So  that 
there  is  little  probability  of  any  personal  rights  that 
lie  within  the  police  powers  of  a  state  being  unneces- 
sarily sacrificed  by  a  national  treaty. 

Moreover,  a  treaty  can  not  be  adopted  by  a  mere 
numerical  majority.  It  must  receive  a  two-thirds 
vote  of  the  Senate,  where  each  state,  however  small, 
stands  upon  an  equal  footing  with  every  other  state, 
however  large. 

Again,  we  can  take  assurance  from  the  record  of 
the  past  century,  during  which  the  treaty-power  has 
made  no  attempt  to  improperly  or  oppressively  invade 
the  police  powers  of  the  states.  Nor  has  any  treaty 
ever  been  negotiated,  whose  validity  was  enough  in 
doubt  to  cause  it  to  be  directly  attacked  in  the  Su- 
preme Court  on  the  charge  that  it  exceeded  the  juris- 
diction of  the  treaty-making  power. 

Every  sovereign  has  the  right  under  international 
law  to  prescribe  the  conditions  on  which  aliens  may 
come  into  its  territory  or  to  exclude  them  altogether. 

As  a  practical  question,  our  fellow  citizens  of  the 
Pacific  states  need  have  no  fear  that  the  President 
and  two-thirds  of  the  Senate  will  ever  permit 
them  to  be  exposed  to  any  serious  danger  of  being 

[24] 


THE    TREATY  -  MAKING    POWER 

over-run  by  an  alien  race.     "  Blood  is  thicker  than 
water. ' ' 

The  diplomacy  of  the  Federal  government  has  al- 
ready accomplished  far  more  toward  checking  the 
immigration  of  Japanese  laborers  than  could  pos- 
sibly have  been  accomplished  by  the  California  school 
bill. 

No  SURRENDER  OF  PRINCIPLE. 

Nor  is  this  conclusion  that  we  have  reached  as  to 
the  authority  of  the  treaty-making  power  to  encroach 
upon  the  police  powers  of  the  states  any  latter-day 
surrender  of  any  real  principle  of  States  Rights  here- 
tofore maintained. 

The  truth  of  this  assertion  can  be  historically  sup- 
ported by  the  expressed  opinions  of  men  illustrious 
in  our  political  history. 

It  was  Benjamin  Franklin,  who,  in  the  Constitu- 
tional Convention  of  1787,  offered  an  amendment  in 
the  Committee  of  the  Whole  on  May  31st  which  was 
unanimously  agreed  to,  placing  "treaties  subsisting 
under  the  authority  of  the  Union "  in  equal  dignity 
with  the  articles  of  union  themselves.  It  was  emi- 
nently appropriate  that  this  provision,  so  intimately 
connected  with  our  foreign  relations,  should  have 
been  proposed  by  a  man  so  experienced  in  diplomacy 
and  so  justly  celebrated  for  sound  practical  sense  and 
worldly  wisdom  as  Mr.  Franklin. 

Edmund  Randolph  was  one  of  the  three  members  of 
the  Convention  of  1787  who  were  so  much  opposed 

[25] 


THE    TREATY  -  MAKING    POWER 

to  certain  other  provisions  of  the  Constitution  that 
they  refused  to  sign  their  names  to  the  completed 
draft  of  the  instrument.  He  was  so  jealous  of  the 
rights  of  the  states  as  against  the  central  govern- 
ment, that,  in  his  opening  speech  of  May  29th,  he 
* '  disclaimed  any  intention  to  give  indefinite  powers  to 
the  national  legislature,  declaring  that  he  was  entirely 
opposed  to  such  an  inroad  on  the  state  jurisdictions, 
and  that  he  did  not  think  any  considerations  whatever 
could  ever  change  his  determination.  His  opinion  was 
fixed  on  this  point." 

And  yet,  in  this  same  speech  when  pointing  out 
some  of  the  defects  in  the  Articles  of  Confederation, 
he  said  that  the  confederation  "could  not  cause  in- 
fractions of  treaties  or  the  law  of  nations  to  be  pun- 
ished ' '  and  that  particular  states  might,  by  their  con- 
duct, provoke  war  without  control."  And  he  pressed 
upon  the  convention  the  necessity  of  making  provision 
in  the  Constitution  to  guard  against  such  danger  in 
the  future. 

CALHOUN  AND  THE  TREATY-POWER. 

John  C.  Calhoun  possessed  one  of  the  greatest 
minds  that  ever  labored  in  the  field  of  American 
statesmanship.  His  intellectual  bent  was  severely  log- 
ical. Even  when  he  was  wrong,  he  was  logically 
right  —  that  is  to  say,  any  error  of  his  conclusion 
would  be  found  hidden  in  an  unproven  premise  and 
not  in  his  process  of  reasoning. 

Facts  and  first  principles  were  the  only  materials 


THE    TREATY  -  MAKING    POWER 

he  needed  to  build  the  most  elaborate  structure.  His 
"Discourse  on  the  Constitution  and  Government  of 
the  United  States,"  an  elaborate  philosophical  trea- 
tise, comprising  nearly  three  hundred  printed  pages, 
is  substantially  without  a  quotation  from  any  source 
except  from  the  instrument  he  was  analyzing,  with 
occasional  reference  to  the  Federalist,  a  contemporary 
production.  His  mind  seemed  to  scorn  the  aid  of 
other  minds  in  deducing  the  truth  from  any  given 
state  of  facts. 

This  champion  of  the  doctrine  of  nullification,  the 
most  extreme  assertion  of  State  Rights  within  the 
Union,  agreed  in  substance  with  John  Marshall  upon 
that  once  mooted  question  whether  it  was  within  the 
power  and  duty  of  the  Supreme  Court  to  declare 
void  a  law  that  was  in  violation  of  the  Constitution.  He 
declared  in  his  famous  "South  Carolina  Exposition" 
of  1828  that  such  power  rested  upon  an  inference, 
but  an  "inference  so  clear  that  no  express  provision 
could  render  it  more  certain, "--  though  he  also  main- 
tained that  the  decision  was  operative  only  between 
the  parties  to  the  case,  and  could  not  bind  a  sovereign 
state. 

On  this  subject  of  the  treaty-making  power  he 
was  no  less  explicit  in  maintaining  its  constitutional 
supremacy. 

On  June  28,  1844,  while  Secretary  of  State  under 
President  Tyler,  Mr.  Calhoun  addressed  a  letter  to 
Mr.  Wheaton,  then  American  minister  to  Prussia,  in 

[27] 


THE    TREATY  -  MAKING    POWER 

which  he  used  the  following  language:  "The  treaty- 
making  power  has  indeed  been  regarded  to  be  so 
comprehensive  as  to  embrace,  with  few  exceptions,  all 
questions  that  can  possibly  arise  between  us  and  other 
nations,  and  which  can  only  be  adjusted  by  their 
mutual  consent,  whether  the  subject  matter  be  com- 
prised among  the  delegated  or  reserved  powers." 

Thus  we  have  from  the  pen  of  this  great  defender 
of  the  rights  of  the  states  an  explicit  sanction  to  the 
doctrine  that  the  treaty-making  power  may  encroach 
upon  the  reserved  rights  and  police  powers  of  the 
states  when  our  foreign  relations  are  involved. 

Again  in  his  Discourse  on  the  Constitution  of  the 
United  States,  composed  toward  the  close  of  his  life 
(1848-9),  he  elucidated,  with  keen  and  profound 
analysis,  the  principles  involved  in  the  treaty-making 
power,  and  after  mentioning  certain  admitted  restric- 
tions, general  and  constitutional,  he  says:  "Within 
these  limits,  all  questions  which  may  arise  between 
us  and  other  powers,  be  the  subject  matter  what  it 
may,  fall  within  the  limits  of  the  treaty-making  power 
and  may  be  adjusted  by  it." 

It  would  be  most  unfortunate  for  the  cause  of  the 
preservation  of  our  dual  system  of  state  and  national 
governments,  each  supreme  in  its  sphere,  if  any  of 
its  advocates  should  be  so  rash  as  to  throw  down  a 
gage  of  battle  upon  the  alleged  rights  of  a  state  to 
over-ride  a  treaty,  merely  because  it  encroaches  upon 
the  police  powers  of  the  state. 

[28] 


THE    TREATY  -  MAKING    POWER 

We  should  join  battle  upon  some  issue  holding  out 
better  hope  of  success. 

WHERE  THE  DANGER  OP  CENTRALIZATION  LIES. 

It  can  be  safely  affirmed  that  the  danger  of  cen- 
tralization in  the  United  States  does  not  lie  in  the 
treaty-making  power  which  deals  with  our  foreign 
relations;  but  in  the  law-making  and  law-executing 
power  of  the  Federal  government,  which  deals  directly 
with  the  relations  of  the  national  government  and  the 
states. 

And  let  us  not  shut  our  eyes  to  the  fact  that  this 
danger  of  centralization  is  increased  by  the  insidious 
and  growing  tendency  of  some  of  the  states  themselves 
to  shift  upon  the  broad  shoulders  of  the  Federal  gov- 
ernment burdens  —  especially  financial  burdens  — 
which  should  be  borne  by  the  states.  This  tendency 
doubtless  springs  in  large  measure  from  the  differ- 
ence in  the  methods  of  taxation  generally  adopted  by 
the  state  and  Federal  governments — the  one  conducive 
to  economy;  the  other  productive  of  extravagance. 

When  we  pay  our  taxes  in  most  of  the  states,  we 
know  the  one  local  collector  and  just  how  much  we  pay 
him.  When  the  burden  becomes  too  heavy,  we  rebel, 
and  hold  our  state  legislators  responsible  at  the 
ballot  box.  But  when  we  pay  our  Federal  tariff  taxes, 
we  can  not  well  figure  out  just  how  much  we  pay,  nor 
do  we  know  the  collectors  —  except  that  all  sellers 
of  protected  articles  are  to  some  extent  Federal  tax 
gatherers.  Public  money  that  comes  easy  goes  easy. 

[29] 


THE    TREATY  -  MAKING    POWER 

Nothing  would  more  conduce  to  the  much  needed 
economy  of  Federal  administration  than  the  supple- 
menting of  stationary  low  tariff  revenues  by  the  impo- 
sition of  an  income  tax  with  a  variable  rate,  rising 
and  falling,  according  to  the  increasing  or  decreasing 
demands  on  the  treasury.  The  taxpayers  would  then 
realize  more  acutely  the  benefits  of  an  economical  ad- 
ministration, and  the  states  would  understand  better 
than  now  that,  on  the  whole,  they  really  save  nothing 
to  the  people  by  drawing  money  from  the  Federal 
treasury  rather  than  from  the  state  treasury.  From 
whichever  source  the  money  comes,  the  people  pay  it. 

THE  SUPREME  COURT  AND  THE  CONSTITUTION. 

In  the  event  the  treaty-making  power  should  ever 
undertake  to  over-reach  the  admittedly  wide  limits  of 
its  constitutional  prerogatives,  and  to  use  the  name  of 
" treaty"  as  mere  colorable  authority  for  usurpation, 
we  could  rely  with  strong  faith  on  the  Supreme  Court 
to  maintain  the  proper  balance  of  our  governmental 
system.  That  tribunal  was  made  the  defender  of  the 
Constitution  and,  in  the  natural  order  of  things,  it 
will  be  the  last  department  of  the  government  to  yield 
to  the  pressure  of  the  centralizing  forces  inherent  in 
all  democracies.  Despite  some  grounds  for  adverse 
criticism,  that  court  has  made  a  notable  record  for 
fidelity  to  the  Constitution. 

In  the  face  of  political  clamor,  it  was  faithful  to 
that  charter  in  its  opinion  in  the  Dred  Scott  case — 

[30] 


THE    TREATY  -  MAKING    POWER 

which  opinion,  be  it  remembered,  was  never  reversed 
except  by  the  sword  and  the  Thirteenth  amendment. 

In  the  midst  of  the  turmoil,  confusion  and  doubt 
as  to  what  political  changes  the  Civil  War  had 
wrought  in  our  governmental  structure,  the  Supreme 
Court  in  1888  (7  Wall,  700)  sounded  this  clear  note 
of  assurance: 

"The  preservation  of  the  states  and  the  mainte- 
nance of  their  governments  are  as  much  within  the 
care  of  the  Constitution  as  the  preservation  of  the 
Union  and  the  maintenance  of  the  National  govern- 
ment." 

Before  the  passions  engendered  by  Reconstruction 
had  passed  away,  the  court,  still  in  the  face  of  political 
criticism,  upheld  the  claims  of  the  states  in  the  cele- 
brated Civil  Rights  cases. 

In  declaring  unconstitutional  the  first  two  sections 
of  the  Civil  Rights  Act  of  March  1,  1875,  the  Supreme 
Court  in  1883,  construing  the  Fourteenth  amendment, 
said: 

"It  is  state  action  of  a  particular  character  that  is 
prohibited.  Individual  invasion  of  individual  rights 
is  not  the  subject  matter  of  the  amendment  ***** 
It  does  not  authorize  Congress  to  create  a  Code  of 
Municipal  law  for  the  regulation  of  private  rights,  but 
to  provide  modes  of  redress  against  the  operation  of 
state  laws  and  the  action  of  state  officers  executive 
or  judicial  when  these  are  subversive  of  the  funda- 
mental rights  specified  in  the  amendment."  109 
U.  S.  11. 

[31] 


THE    TREATY  -  MAKING    POWER 

Again,  in  a  recent  decision  (1907)  in  206  U.  S. 
46,  the  court  reiterates  its  position  in  the  following  un- 
mistakable terms: 

"The  government  of  the  United  States  is  one  of 
enumerated  powers;  it  has  no  inherent  powers  of 
sovereignty;  the  enumeration  of  the  powers  granted 
is  to  be  found  in  the  Constitution  of  the  United  States 
and  in  that  alone;  the  manifest  purpose  of  the  Tenth 
Amendment  to  the  Constitution  is  to  put  beyond  dis- 
pute the  proposition  that  all  powers  not  granted,  are 
reserved  to  the  people,  and  if  in  the  changes  of  the 
years  further  powers  ought  to  be  possessed  by  Con- 
gress, they  must  be  obtained  by  a  new  grant  from 
the  people." 

Though  our  state  Supreme  Courts  are  clothed  with 
a  like  power  to  declare  void  state  laws  when  in  viola- 
tion of  their  written  constitutions,  yet  it  remains  true 
that  no  other  court  in  the  world  has  as  much  power 
as  the  Supreme  Court  of  the  United  States.  More- 
over, if  our  present  form  of  government  should  ever 
be  destroyed  by  forces  working  from  within,  no  other 
government  that  could  be  erected  on  its  ruins  would 
ever  give  a  court  like  power. 

For  this  court  by  its  own  decisions  to  permit  our 
constitutional  government,  of  which  it  is  the  ap- 
pointed guardian,  to  be  overthrown  would  be  to  in- 
volve itself  in  the  ruins.  Dereliction  to  its  high  duty 
to  protect  the  Constitution  against  all  enemies  would 
eventually  mean  abdication  —  nay  more  —  it  would 
mean  self-destruction. 

[32] 


THE    TREATY  -  MAKING    POWER 

That  exalted  tribunal  has  every  incentive  of  selfish 
interest  and  noble  duty  to  stand  faithful  to  its  great 
trust. 

Having  outlived  and  discarded  the  doctrines  of 
nullification  and  secession,  We,  the  People  of  the 
United  States,  have  created  a  unified  national  senti- 
ment that  will  ever  be  a  safe  protection  against  that 
form  of  political  disintegration,  which  threatened  the 
Union  for  three-quarters  of  a  century. 

It  now  behooves  us  to  be  on  guard  against  too  much 
consolidation,  involving,  as  it  does,  the  gradual  de- 
struction of  the  vital  principle  of  local  government, 
with  its  accompanying  virtues  of  individuality  and 
sturdy  self-reliance,  and  substituting  in  their  stead 
the  vices  of  depending  for  initiative  and  guidance  on 
the  Federal  government,  and  too  often  begging  help 
from  the  Federal  treasury. 

Having  barely  survived  Scylla,  let  us  carefully 
avoid  Charybdis. 

When  I  express  my  confidence  in  the  wisdom  of 
local  government,  of  course,  I  do  not  mean  local 
mobism. 

Many  noted  thinkers  and  orators  from  the  South 
have  written  and  spoken  of  States  Rights  with  vary- 
ing limitations  of  the  doctrine.  But  it  remained  for 
a  full-blooded  Puritan  from  New  England  to  say 
something  quite  recently  on  this  time-worn  theme  that 
was  surpassingly  beautiful.  In  his  address  before 
the  New  England  Society  at  Charleston,  S.  C.,  in 
1898,  Senator  Hoar,  of  Massachusetts,  said  that  he 

[33] 


THE    TREATY  -  MAKING    POWER 

loved  to  think  of  the  states  as  "beautiful  personal- 
ities." That  was  a  fine  stroke  of  the  artist's  brush. 

The  fact  is,  that  this  old  doctrine  of  States  Rights 
is  based  on  the  soundest  philosophy,  when  restricted 
within  constitutional  limitations  and  practiced  along 
with  the  correlative  doctrine  of  State  Duties  —  I  re- 
peat it  State  Duties.  It  breathes  the  free  spirit  of 
Home  Rule  and  individualism  —  and  after  all,  is  not 
the  individual,  whatever  his  environment,  the  safest 
unit  on  which  to  build  a  great  nation? 

It  was  the  failure  of  Governor  Aldgelt,  of  Illinois, 
to  perform  a  State  Duty  that  made  it  necessary  and 
justifiable  for  President  Cleveland  to  send  Federal 
troops  to  Chicago  to  suppress  mob  rule  that  was  ob- 
structing United  States  mails. 

Our  people  of  all  sections  of  the  Union  could  set 
themselves  to  no  wiser,  nor  more  timely,  task  than 
guarding  our  dual  system  of  government  against  every 
insidious  danger  that  may  threaten  to  transform  it 
into  a  centralized,  consolidated  democracy — un- 
wieldy in  bulk,  unchecked  in  power,  ruled  by  the 
tyranny  of  a  numerical  majority,  and  becoming  at 
last  the  unhappy  victim  of  socialistic  experimenta- 
tion—  not  the  socialism  that  springs  from  an  altru- 
istic Christianity,  such  as  all  true  patriots  might  wel- 
come; but  the  socialism  that  destroys  the  home  and 
denies  the  right  of  private  property,  two  of  the  most 
potent  factors  of  civilization. 


[34] 


SLAVERY  AND  THE  RACE 
PROBLEM  IN  THE  SOUTH 


"Remember  that  to  change  thy  opinion,  and  to  follow 
him  who  corrects  thy  error,  is  as  consistent  with  freedom 
as  it  is  to  persist  in  thy  error." 

MARCUS  AURELIUS. 

"There  is  no  ignorance  more  shameful  than  to  admit 
as  true  that  which  one  does  not  understand;  and  there 
is  no  advantage  so  great  as  that  of  being  set  free  from 
error." 

SOCRATES. 


INTRODUCTION 

A  concise  statement  of  the  reasons  which  led  to 
this  publication  in  a  permanent  form  may  appropri- 
ately be  in  the  nature  of  a  Publisher  ?s  Announcement, 
and  excerpts  from  correspondence  relating  to  it  will 
probably  give  the  best  idea  of  these  reasons. 

The  correspondence  regarding  this  speech  began 
by  a  letter  from  the  writer,  of  which  the  following  is 
a  copy: 

"July  5th,  1906.^ 
"HONORABLE  WILLIAM  H.  FLEMING, 

My  Dear  Mr.  Fleming: — 

I  think  that  you  and  the  whole  country 
are  to  be  congratulated  upon  your  grand  exposition  of  the 
principles  which  should  guide  the  South,  and  indeed  the 
whole  country,  in  dealing  with  the  problem  of  the  negro 
race. 

I  have  for  several  years  spent  my  winters  in  Africa, 
and  have  studied  the  conditions  of  the  African  upon  his  own 
ground,  having  penetrated  to  the  equatorial  countries  of  the 
Uganda  and  the  Congo  State,  in  addition  to  traveling  the 
whole  extent  of  the  Soudan,  and  while  I  agree  with  you  in 
your  statement  that  'God  knows  the  South  wants  no  more 
of  that  curse/  of  slavery,  and  while  I  agree  with  the'  gen- 
eral statement  that  'slavery  is  the  sum  of  all  evils,'  I  have 
come  to  the  conclusion  that  the  greatest  wrong  which  slav- 
ery inflicts  upon  a  people  is  not  upon  the  slave,  but  upon 
the  slaveholder.  No  matter  how  greatly  the  slave  is  de- 
graded, the  evil  effects  to  the  superior  race  that  holds  the 

[37] 


INTRODUCTION 

slave  is  in  my  opinion  the  greater  wrong  of  the  two  to  the 
general  civilization  of  the  world. 

To  be,  as  you  are,  a  leader  in  this  movement,  is  in  my 
opinion  one  of  the  highest  honors  to  which  any  American 
can  aspire.  I  deem  your  speech  a  real  milestone  in  the 
path  of  progress,  and  with  your  consent,  I  should  be  glad 
to  reprint  it  in  an  attractive  form  to  extend  its  circulation 
as  far  as  I  can. 

Yours  sincerely, 

DANA  ESTES." 

A  prompt  reply  contained  the  consent  to  the  pub- 
lication, and  in  offering  it  to  the  public,  the  editor  felt 
that  the  endorsement  of  the  leaders  of  political  and 
moral  movements  throughout  the  country  would  be  of 
service  in  extending  its  influence.  He,  therefore,  ad- 
dressed President  Roosevelt  for  this  purpose,  and  the 
following  are  excerpts  from  the  correspondence  re- 
garding this  subject : 

"July  23rd,  1906. 
"To  THE  PRESIDENT, 

My  Dear  Sir: — 

I  think  it  beyond  doubt  that  your  at- 
tention has  been  attracted  to  the  patriotic  and  important 
speech  of  the  Honorable  William  H.  Fleming  of  Georgia. 

I  have  asked  of  him,  as  per  enclosed  copy  of  my  letter 
to  him  of  July  5th,  the  privilege  of  reprinting  this  in  an 
attractive  form  to  extend  its  benefits  as  widely  as  possible. 
It  seems  to  me  to  mark  an  epoch  in  this  agitation,  and  I  am 
informed  that  since  the  delivery  of  this  speech  the  Commit- 
tee of  the  Georgia  legislature  has  reported  against  the  pas- 
sage of  the  disfranchisement  bill  without  a  dissenting  vote. 

[38] 


INTRODUCTION 

I  believe  this  to  be  largely  the  result  of  Mr.  Fleming's  great 
speech. 

If  it  would  be  entirely  proper  for  you,  in  view  of  your 
exalted  official  position,  to  commend  the  sentiments  of  this 
speech,  and  permit  such  commendation  to  be  used  in  an 
introduction  to  the  speech,  I  should  be  pleased  to  receive  the 
same  from  you. 

The  publication  of  the  speech  is  not  intended  as  a 
commercial  transaction. 

Yours  respectfully, 

DANA  ESTES." 

"Oyster  Bay,  N.  Y.,  July  25,  1906. 
"My  Dear  Mr.  Estes: 

I  am  glad  that  you  are  to  publish  ex- 
Congressman  Fleming's  noteworthy  speech  in  more  perma- 
nent form  than  it  is  possible  ordinarily  to  publish  such 
speeches.  *  *  *  *  * 

Mr.  Fleming's  speech  is  admirable,  alike  for  its  fear- 
lessness, its  sanity,  and  the  high  purpose  which  it  shows. 
The  problems  of  any  one  part  of  our  great  common  country 
should  be  held  to  be  the  problems  of  all  our  country — at 
least  to  the  extent  that  all  our  people  should  give  their 
hearty  and  respectful  sympathy  to  those  who  in  their  own 
neighborhood,  are  trying  to  solve  their  particular  problems 
aright.  In  each  locality  we  have  our  own  special  and 
peculiar  difficulties ;  and  when  a  brave  and  honest  man  does 
good  work  in  meeting  the  peculiar  difficulties  of  his  own 
region,  he  not  only  does  good  therein,  but  by  example  and 
influence  he  helps  Americans  in  other  parts  of  our  great 
commonwealth  manfully  to  grapple  with  the  various  evils 
which  they  in  their  turn,  have  to  strive  against. 

Sincerely  yours, 

THEODORE  ROOSEVELT." 

[39] 


INTRODUCTION 

At  the  writer's  especial  request,  Mr.  Fleming  has 
furnished  him  with  a  few  excerpts  from  the  many 
letters  of  approval  which  he  has  received  from  all 
parts  of  the  country;  and  especially  from  leaders  of 
opinion  in  the  South.  In  his  reply  he  says:  "Many 
of  the  strongest  commendations  which  my  speech  has 
received  have  been  given  to  me  in  person  by  word  of 
mouth,  and,  consequently,  do  not  appear  in  written 
form  that  could  be  used." 

Among  the  many  received  by  letters  may  be 
quoted  the  following: 

(Hon.  MOORFIELD  STOREY,  Boston,  Mass.,  letter  June  29th.) 
"It  is  a  courageous  thing  to  stand  up  in  one's  country 
and  speak  as  you  have  done,  and  such  courage  is  very  much 
needed  today.  You  have  never  lacked  that  quality,  and  I 
hope  your  example  will  be  an  inspiration  to  others." 

(Judge  JOHN  L.  HOPKINS  of  Atlanta,  Ga.,  letter  July  28th.) 
"I  have  read  your  speech  more  than  once.  It  is  satis- 
fying. In  some  of  its  parts  it  has  been  comforting  to  me — 
in  all,  interesting.  The  preparation  of  such  a  paper  is  a 
valuable  service  to  the  state.  It  was  needed — it  was  just 
the  right  thing." 

(Judge  JOEL  BRANHAN  of  Rome,  Ga.,  letter  June  23rd.) 
"I  want  to  thank  you  for  your  grand  speech  on  the 
disfranchisement  of  the  negro  before  the  Alumni  of  the 
University  of  Georgia  on  the  19th  inst.,  which  I  have  just 
had  the  pleasure  of  reading.  It  is  truthful,  honest  and 
unanswerable." 

(R.  F.  CAMPBELL,  Asheville,  N.  C.,  letter  June  25th.) 
"In  intellectual  strength  and  moral  soundness,  it  takes 
its  place  easily  among  the  very  best  things  ever  written  or 
spoken  on  this  subject." 

[40] 


INTRODUCTION 

(Hon.  HARRY  HAMMOND,  Beach  Island,  S.  C.,  letter 

June  27th.) 

"Van  Hoist,  a  northern  sympathizer,  said  a  century  and 
a  half  must  elapse  before  a  verdict  could  be  reached  as  to 
the  wisdom  of  emancipation.  The  solution  of  the  race 
problem  advocated  by  you — Justice  to  the  Negro — needs 
no  time  for  its  confirmation.  It  is  registered  among  the 
indisputable  truths  of  eternity  itself." 

(Former  Congressman  WM.  H.  FELTON,  Cartersville,  Ga.) 

"I  thank  you  with  all  my  heart  for  the  address  made  at 
the  Athens  Commencement.  Yours  were  words  of  sober 
caution  and  profound  prudential  wisdom." 

(EMORY  SPEER,  U.  S.  District  Judge,  letter  June  27th.) 
"I  have  received  the  pamphlet  print  of  your  great 
speech  on  Slavery  and  the  Race  Problem  in  the  South.  I 
had  the  happiness  of  hearing  this  appeal  to  the  intelligence 
and  sense  of  justice  of  our  people,  and  I  cannot  well  over- 
state the  pleasure  it  gave  me  to  see  with  what  enthusiasm 
the  Alumni  body  of  our  Alma  Mater  present  received  such 
a  fearless  and  truthful  exposition  of  great  and  salutary 
truths." 

(JAMES  R.  RANDAL,  New  Orleans,  Author  of  "Maryland, 

My  Maryland,"  letter  June  27th.) 
"The  speech  was   a  masterpiece.    No  one  else  could 
have  done  it." 

(Judge  W.  H.  HULSEY,  Atlanta,  Ga.,  letter  June  29th.) 
"Reading  your  address  from  start  to  finish,  it  pleases 
me  to  say  that  every  patriotic  Georgian  ought  to  feel  grate- 
ful to  you  for  giving  to  your  state  a  clear,  forceful  and 
masterly  presentation  in  your  Athens  address  of  what  may 
be  termed  the  Negro  Problem." 

[41] 


INTRODUCTION 

(Congressman   W.   M.   HOWARD,   Atlanta,   Ga.,   letter 

June  25th.) 

"I  am  very  glad  to  get  the  speech,  not  because  it  is  a 
revelation  to  me  of  your  views  on  this  question,  but  espe- 
cially to  know  precisely  what  you  said  in  view  of  the  criti- 
cism I  have  seen  in  the  papers  about  it.  The  speech  is  up 
to  the  very  best  of  your  ability,  and  I  am  proud  of  you  as 
a  friend  and  a  citizen  of  Georgia  because  of  the  pertinence 
and  power  of  the  speech.  I  am  glad  that  you  made  it  when 
and  where  you  did.  It  is  the  strongest  and  clearest  voice 
that  has  been  heard  since  this  issue  became  state  wide." 

(Prof.  W.  S.  BEAN,  Clinton,  S.  C.,  letter  June  25th.) 

"I  am  delighted  with  the  address,  its  calmness  and  fair- 
ness of  statement,  its  ample  basis  of  fact,  its  appeal  to  a 
sense  of  justice  and  fairness  and  its  belief  in  the  principle 
that  no  wrong  can  be  inflicted  for  political  purposes 
which  will  not  certainly  react  upon  the  agent  at  sometime. 
#  *  *  *  *  j  am  gja(j  YOU  jja(j  g.,.^  a  Spiendid  op- 
portunity, such  a  fine,  intelligent  audience,  and  that  you 
rose  to  the  occasion  in  a  speech  that  is  masterly,  statesman- 
like and  Christian.  May  you  live  long  to  keep  up  such 
a  good  work  and  find  staunch  friends  to  stand  by  you  and 
your  principles." 

(C.  P.  GOODYEAR,  Brunswick,  Ga.,  letter  June  27th.) 

"That  was  a  great  and  statesmanlike  and  patriotic 
speech  of  yours  at  the  University.  The  day  will  come 
when  wise  men  in  Georgia, — good  men  everywhere, — will 
appreciate  the  calm  temper  and  patriotic  thought  which 
dictated  it." 

(GEORGE  FOSTER  PEABODY,  New  York  City,  letter 

June  28th.) 

"The  more  I  think  of  the  matter,  the  more  do  I  believe 
that  you  have  done  a  far-reaching  service  and  that  it  may 

[42] 


INTRODUCTION 

well  prove  to  be  the  case  that  no  address  during  the  last 
twenty  years  has  been  more  important." 

( Ex-Go v.  ALLEN  D.  CANDLER,  Atlanta,  Ga.,  letter 
July  4th.) 

"I  have  read  it  with  a  great  deal  of  interest,  and  it  is 
without  exaggeration  a  gem,  and  every  loyal  Georgian  who 
knows  Georgia  and  her  career  in  the  past  and  the  apparent 
insuperable  obstacles  her  people  have  had  to  surmount 
will  thank  you  for  it.  *  *  *  I  think  no  fitter  occasion 
could  have  been  found  for  the  utterance  of  the  lofty  senti- 
ments contained  in  it  than  the  Commencement  of  the  State 
University  before  the  Alumni  Association  of  the  oldest  state 
college  in  America." 

(T.  C.  BETTERTON,  Dalton,  Ga.,  letter  July  8th.) 
"Please  allow  me  to  say  that  you  have  in  this  address 
performed  the  highest  possible  service  to  your  state  and  to 
the  South.     I  would  that  every  citizen  in  our  state  could 
read  it  thoroughly." 

(Rev.  WALKER  LEWIS,  Augusta,  Ga.,  letter  July  15th.) 

"I  have  just  finished  the  best  Sunday  reading  I  have 
seen  in  many  years.  It  is  your  great  article  on  the  Race 
Question.  It  is  masterful,  it  is  unanswerable,  it  is  worthy 
of  a  great  statesman;  it  is  Christian  philosophy  and  right- 
eousness." 

(FRANCIS  LYNDE  STETSON,  Sterlington,  Rockland  Co., 

N.  Y.,  letter  July  8th.) 

"I  consider  it  the  best  presentation  of  the  various 
phases  of  this  difficult  question  that  I  have  ever  seen,  and 
his  proposed  solution  through  the  ordinary  observation  of 
the  universal  mandate  of  the  moral  law  attests  his  sanity." 

[43] 


INTRODUCTION 

"Lake  George,  N.  Y.,  3rd  July,  1906. 
"THE  HONORABLE  WILLIAM  H.  FLEMING,  Augusta,  Ga. 
My  Dear  Sir:— 

I  cannot  forbear  writing  to  you  of  my  delight 
at  your  great  speech,  delivered  before  the  Alumni 
Society  at  the  University  of  Georgia.  In  its  insight,  its 
iron  logic,  its  political  perspective,  and  its  high  morality, 
it  is,  I  think,  one  of  the  greatest  constructive  addresses  of 
the  time;  and  these  qualities  mark  it  as  belonging  to  that 
class  of  political  literature  to  which  the  speeches  of  Web- 
ster, Hayne  and  Lincoln  belong.  I  would  not  be  guilty  of 
flattery,  but  such  an  address  at  such  a  time  and  place  is  an 
event  which  gives  one  a  legitimate  pride  in  human  kind,  and 
a  joy  in  the  mere  fact  of  living.  I  have  long  felt  that  this 
time  with  its  problems,  on  the  principle  that  great  occasions 
make  great  men,  is  one  which  must  call  into  being  and  ac- 
tion men  of  the  first  order,  men  who  are  capable  of  seeing 
the  significance  of  the  time  and  of  meeting  its  great  de- 
mands. I  think  the  men  are  coming,  and  I  hail  your  speech 
as  a  sign  that  they  are  coming. 

Faithfully  yours, 

SAMUEL  H.  BISHOP/' 

(Prof.  CHAS.  ELIOT  NORTON,  Cambridge,  Mass.,  letter  Aug. 

llth.) 

"Nothing  could  be  better  than  its  spirit.  It  would  be 
a  most  encouraging  sign  in  these  confused  days  should  your 
appeal  to  the  intelligent  and  moral  sympathy  of  the  com- 
munity be  heeded  and  responded  to." 

(RICHARD  C.  OGDEN,  Madison  Ave.,  New  York,  letter  Aug. 

12th.) 

"I  appreciate  your  great  contribution  to  the  solution 
of  the  one  great  question  that  retards  the  growth  of  Ameri- 
can unity." 

[44] 


INTRODUCTION 

(H.  B.  BROWN,  Ex- Justice  Sup.  Court,  U.  S.,  letter  Aug. 

5th.) 

"I  cannot  refrain  from  expressing  to  you  my  appre- 
ciation of  your  masterly  address  of  June  19th  upon  Slavery 
and  the  Race  Problem.  It  is  quite  the  most  satisfactory  of 
any  I  have  seen  upon  that  subject.  I  cannot  doubt  your 
views  will  ultimately  prevail  in  the  South,  as  they  do  al- 
ready in  the  North.  I  have  always  believed  the  question 
of  suffrage  would  finally  be  solved  by  the  adoption  of  an 
educational  or  property  qualification,  which,  if 'fairly  ad- 
ministered, would  answer  the  purpose.  I  do  not  think 
anyone  should  be  disfranchised  solely  on  account  of  color." 

The  writer  has  made  no  attempt  to  collect  the 
opinions  of  the  Press,  though  he  has  seen  many  that 
were  as  emphatic  in  commendation  as  are  the  personal 
opinions  herewith  submitted.  He  can  not,  however, 
refrain  from  a  brief  excerpt  from  an  editorial  of  the 
" Augusta  (Ga.)  Chronicle": 

"The  speech  was  pronounced  by  all  who  heard  it  or 
read  it  to  be  the  greatest  ever  delivered  from  the  University 
platform." 

It  may  not  be  inappropriately  stated  that  commer- 
cial considerations  have  had  no  part  in  influencing  the 
publication  of  this  speech,  that  the  profits  arising 
from  its  publication  will  be  devoted  to  educational 
work  in  the  South,  and  that  the  editor,  and  not  the 
author,  is  responsible  for  the  insertion  of  the  quota- 
tions at  the  beginning  of  this  work. 

DANA  ESTES. 

[45] 


INTRODUCTION 

(BOOKER  T.  WASHINGTON,  Tuskegee,  Ala.,  letter  June  30th, 

1906.) 

"I  read  that  speech  with  a  great  deal  of  interest  and 
encouragement;  and  in  behalf  of  my  race,  let  me  thank 
you  for  the  brave  and  helpful  words  in  its  behalf." 

"Three  Oaks,  Hickman  Street,  Augusta, 

March  21,  1917. 
"Dear  Sir:— 

I  read  your  great  oration  yesterday  from  begin- 
ning to  end,  and  I  could  not  express  without  seeming  to 
exaggerate,  my  very  profound  gratitude  to  you  for  it.  You 
have  said  with  beautiful  clearness  and  admirable  courage 
the  things  that  needed  to  be  said,  and  most  of  all  said  by  a 
Southern  man,  and  I  feel  that  our  nation,  our  civilization, 
owes  you  a  debt  which  we  can  not  too  eagerly  unite  in 
trying  to  repay. 

I  congratulate  you  from  my  heart. 
Yours  sincerely, 

(Signed)  W.  D.  HOWELLS. 

Hon.  Wm.  H.  Fleming." 


[46] 


SLAVERY  AND  THE  RACE  PROBLEM 
IN  THE  SOUTH. 

Brothers  of  the  Alumni  Society,  Ladies  and  Gentle- 
men: 

It  is  my  purpose  to  discuss  slavery  and  the  race 
problem  in  the  South,  with  special  reference  to  our 
own  State  of  Georgia. 

No  public  issue  is  more  deserving  of  thoughtful 
consideration  by  our  people,  and  no  occasion  could  be 
more  fit  for  its  discussion.  This  audience  is  qualified 
in  head  and  heart  to  appreciate  at  its  true  value  every 
argument  that  may  be  advanced,  and  this  platform 
at  our  chief  seat  of  learning  is  so  lifted  up,  that  words 
spoken  here  may  be  heard  in  all  parts  of  the  State, 
echoing  among  the  "Hills  of  Habersham"  and  over 
the  "Sea  Marshes  of  Glynn." 

If  there  be  any  one  present  perturbed  by  a  secret 
doubt  as  to  the  propriety  of  my  brin^'*™  this  subject 
and  this  occasion  together  in  the  midst  of  the  pending 
political  campaign  in  Georgia,  let  me  hasten  to  allay 
his  fears  with  the  assurance  that  I  shall  carefully  re- 
frain from  all  offensive  personal  allusions.  Speaking 
to  this  very  point  some  weeks  before  his  fatal  illness, 
Chancellor  Hill  cordially  approved  of  my  selection  of 
the  race  problem  for  discussion  at  this  time  before  the 
alumni  of  the  university,  and  he  added  with  char- 

[47] 


SLAVERY  AND  THE  RACE  PROBLEM 

acteristic  broadmindedness :  "I  wish  my  platform  at 
Athens  to  be  a  place  for  the  freest  expression  of  hon- 
est thought." 

At  the  outset,  we  should  realize  that  if  we  are  to 
make  any  genuine  progress  toward  a  right  solution  of 
our  problem,  we  must  approach  it  in  a  spirit  of  the 
utmost  candor,  and  with  an  eye  single  to  the  ascertain- 
ment of  the  truth.  The  pessimist  "sailing  the  Vesu- 
vian  Bay"  listens  for  the  dreaded  rumblings  of  the 
distant  mountain — blind  to  the  wondrous  beauties  of 
earth  and  sky  about  him.  The  optimist  floating  down 
the  placid  upper  stream  pictures  to  himself  an  end- 
less panorama  of  peaceful  landscapes — deaf  to  the 
thundering  cataract  of  Niagara  just  below  him.  But 
better  than  pessimism  and  better  than  optimism  is 
that  philosophy  which  faces  facts  as  they  are,  and 
courageously  interprets  their  meaning. 

SLAVERY  AND  CHRISTIANITY. 

In  the  earlier  civilizations  slavery  was  the  rule,  not 
the  exception.  But  with  the  advent  of  the  Christ  and 
His  teachings,  a  silent,  gentle,  yet  all-compelling  force 
began  its  work  on  the  universal  heart  of  humanity. 
Christianity  adjusted  itself  to  existing  governmental 
institutions,  including  -slavery.  But  it  inculcated 
such  lofty  doctrines  of  love  and  duty,  and  created 
such  vivid  conceptions  of  a  personal  God  and  Father 
of  us  all,  that  it  was  only  a  question  of  time  when 
Christian  peoples  could  not  hold  in  slavery  those  of 
their  own  faith  and  blood. 

[48] 


SLAVERY  AND  THE  RACE  PROBLEM 

In  England  in  1696  the  doctrine  had  obtained 
wide  acceptance  that  Christian  baptism  of  itself 
worked  a  legal  manumission  of  the  slave.  Argu- 
ment to  that  effect  was  urged  by  able  lawyers  in  the 
court  of  King's  Bench  in  the  suit  of  Chamberlain  v. 
Herney,  but  the  case  went  off  on  another  ground,  and 
that  point  was  not  decided.  About  the  same  time, 
however,  the  colonies  of  Maryland,  Virginia  and 
South  Carolina  passed  laws  that  Christian  baptism 
should  not  free  the  negro  slave,  ' '  any  opinion  or  mat- 
ter to  the  contrary  notwithstanding."  Thus  we  see 
a  recognition  of  the  necessity  at  that  period  of  our  his- 
tory of  controlling  by  statutory  enactments  this  ex- 
panding sentiment  of  Christian  brotherhood  among 
the  masses  of  the  people,  so  as  to  prevent  it  from 
embracing  the  alien  negro  race. 

The  march  of  Christian  civilization  had  put  an 
end  to  white  slavery,  but  negro  slavery  still  nourished, 
chiefly  because  the  negro  was  of  a  different  race- 
blood  from  his  masters.  Oneness  in  faith  and  blood 
had  grown  to  mean  freedom  for  the  white  man.  But 
oneness  in  faith,  without  oneness  in  blood,  still  meant 
slavery  for  the  negro. 

Indeed,  negro  slavery  as  a  historical  institution  in 
Western  civilization  occupies  a  unique  position  of  its 
own.  It  began  in  the  fifteenth  century  when  white 
slavery  had  practically  ceased.  Most  other  slaveries 
were  incidental  results  of  wars.  Negro  slavery 
originated  in  commerce,  in  trade  and  barter,  and  so 
continued  until  it  was  suppressed. 

[49] 


SLAVERY  AND  THE  RACE  PROBLEM 

JUSTIFICATION  OP  NEGRO  SLAVERY  BASED  ON  RACE- 
INFERIORITY. 

When  in  later  years  the  institution  was  summoned 
before  the  bar  of  the  world's  public  opinion,  its  most 
logical  and  profound  defenders  admitted  the  wrong- 
fulness  of  white  slavery,  but  justified  negro  slavery 
on  the  plea  of  the  natural  inferiority  of  the  negro 
race. 

Alexander  Stephens,  then  vice-president  of  the 
Southern  Confederacy,  in  his  famous  Corner-Stone 
Speech  at  Savannah  in  March,  1861,  said:  "Many 
governments  have  been  founded  upon  the  principle  of 
subordination  and  serfdom  of  certain  classes  of  the 
same  race.  Such  were,  and  are,  in  violation  of  the 
laws  of  nature.  Our  system  contains  no  such  viola- 
tion of  nature's  laws.  With  us,  all  the  white  race, 
however  high  or  low,  rich  or  poor,  are  equal  in  the 
eye  of  the  law.  Not  so  with  the  negro ;  subordination 
is  his  place."  *  *  *  *  Referring  to  the  Con- 
federacy, he  declared:  "Its  foundations  are  laid,  its 
corner  stone  rests,  upon  the  great  truth  that  the  negro 
is  not  equal  to  the  white  man,  that  slavery — subordi- 
nation to  the  superior  race — is  his  natural  and  normal 
condition." 

The  fact  of  race  inequality  here  stated  cannot  well 
be  denied.  But  there  is  still  a  fatal  flaw  in  the  logic. 
That  flaw  lies  in  the  assumption  that  a  superior  race 
has  the  right  to  hold  an  inferior  race  in  slavery.  A 
race  can  not  be  justly  deprived  of  liberty  merely  be* 

[50] 


SLAVERY  AND  THE  RACE  PROBLEM 

cause  it  is  relatively  inferior  to  another.  If  so,  all 
other  branches  of  the  human  family  could  justly  be 
reduced  to  slavery  by  the  highest,  most  masterful 
branch — and  that  mastery  could  only  be  determined 
by  force  of  arms.  The  obligation  of  the  superior  to 
lead  and  direct  does  not  carry  with  it  the  right  to  en- 
slave. 

Mr.  Stephens  further  declared  in  his  speech :  ' '  It  is 
upon  this,  as  I  have  stated,  our  social  fabric  is  firmly 
planted,  and  I  can  not  permit  myself  to  doubt  the  ul- 
timate success  of  the  full  recognition  of  this  principle 
throughout  the  civilized  and  enlightened  world." 

Here  we  have  one  of  the  ablest  intellects  of  his  day 
not  only  asserting  that  negro  slavery  was  legally  and 
morally  right,  but  predicting  that  its  recognition 
would  become  universal  throughout  the  civilized 
world — a  prediction  made  within  five  years  of  its 
abolition  in  the  United  States,  and  within  twenty- 
seven  years  of  its  abolition  in  Brazil,  which  marked 
the  final  disappearance  of  human  slavery  as  a  legal- 
ized institution  among  civilized  peoples. 

Let  me  say  in  passing,  that  this  Corner-Stone 
speech  is  not  to  be  found  in  the  authorized  volume 
containing  the  biography  and  speeches  of  Mr. 
Stephens.  One  can  scarcely  suppress  the  question: 
Did  the  great  commoner  prefer  for  posterity  to  judge 
him  by  other  speeches  ?  Certain  it  is,  that  the  views 
he  expressed  on  negro  slavery  did  not  spring  from 
hardness  of  heart,  or  want  of  sympathy  with  any  suf- 
fering creature  on  earth.  At  his  death,  his  negro 

[51] 


SLAVERY  AND  THE  RACE  PROBLEM 

body  servant  in  tearful  accents  pronounced  upon  him 
this  noble  eulogy:  "Mars  Alec  was  kinder  to  dogs 
than  most  men  is  to  folks. ' ' 

But  Mr.  Stephens  was  defending  the  then  existing 
institution  of  slavery  handed  down  to  his  people  by 
their  fathers,  recognized  by  historical  analogies  from 
the  Bible,  and  sanctioned  by  the  Federal  Constitution. 
His  moral  nature  was  uncompromising.  There  was 
no  way  to  adjust  that  moral  nature  to  existing 
conditions  except  by  making  the  assumption,  which 
he  did  make,  of  the  right  of  a  superior  race  to  en- 
slave an  inferior  race-. 

If  race  environment  could  so  warp  the  judgment 
of  a  great  intellect  like  that  of  Alexander  Stephens, 
other  men  may  well  be  cautious  lest  they  miss  the 
truth. 

We  need  not  stop  to  discuss  whether  the  North  or 
South  was  the  more  responsible  for  negro  slavery  in 
America.  It  takes  two  to  make  a  bargain.  North- 
ern traders  sold  and  Southern  planters  bought.  If 
Charleston,  South  Carolina,  was  one  of  the  chief  ports 
of  destination  for  slave  trading  vessels,  Salem,  Massa- 
chusetts, was  one  of  the  chief  ports  from  whence 
those  vessels  sailed. 

In  the  earlier  days  of  the  Southern  colonies  there 
were  many  strong  protests  against  negro  slavery. 
But  once  established  it  continued  to  grow  and  flourish 
until  we  reached  those  unhappy  days  foreshadowed 
by  Mr.  Madison,  when  he  said  in  the  constitutional 
convention  of  1787  that  the  real  antagonism  would 

[52] 


SLAVERY  AND  THE  RACE  PROBLEM 

not  arise  between  the  large  States  on  the  one  hand 
and  the  small  States  on  the  other,  as  many  seemed  to 
fear,  but  that  ' '  The  institution  of  slavery  and  its  con- 
sequences formed  the  line  of  discrimination." 

SLAVERY  THE  IRRITATING  CAUSE  OP  THE  WAR. 

No  historian  can  ever  truthfully  assert  that  the 
men  who  bore  the  banner  of  the  Confederacy  in  vic- 
tory and  in  defeat  with  such  matchless  courage  and 
heroic  sacrifice  were  moved  only  by  the  selfish  purpose 
of  holding  their  black  fellowmen  in  bondage.  They 
were  inspired  by  the  noblest  sentiments  of  patriotism. 
So  far  from  being  traitors  to  the  Constitution  of  their 
fathers,  which  Mr.  Gladstone  declared  was  the  "most 
wonderful  work  ever  struck  off  at  a  given  time  by  the 
brain  and  purpose  of  man,"  they  reverenced  that 
great  instrument  next  to  the  Bible.  So  far  from 
trampling  it  under  foot,  they  held  it  up  as  their 
shield.  They  appealed  to  the  North  and  West  to 
recognize  the  binding  obligation  of  that  Constitution, 
as  interpreted  by  the  highest  court,  only  to  hear  it  de- 
nounced at  last  as  "a  covenant  with  death  and  an 
agreement  with  hell." 

And  yet,  we  must  in  candor  admit  that  the  truth- 
ful historian  will  write  it  down  that  slavery  was  the 
particular  irritating  cause  that  forced  on  the  conflict 
of  arms  between  the  sections,  though  deeper  causes 
lay  at  the  foundation  of  our  sectional  differences  on 
centralization  and  State  rights. 

When  Robert  Toombs  made  his  memorable  fare- 

[53] 


SLAVERY  AND  THE  RACE  PROBLEM 

well  speech  in  the  United  States  Senate  on  January 
7,  1861,  he  laid  down  five  propositions,  setting  forth 
the  contentions  of  the  South,  which,  if  granted,  would 
have  averted  disunion.  Every  one  of  those  five  prop- 
ositions was  a  clear  cut,  logical  deduction  from  the 
original  meaning  and  intent  of  the  Constitution,  and 
all  five  of  them  centred  around  the  institution  of 
slavery. 

Again,  when  the  conflict  was  over  and  the  Consti- 
tution was  amended  at  three  separate  times,  two  of 
these  amendments,  the  thirteenth  and  fifteenth,  re- 
ferred exclusively  to  slavery,  and  the  other,  the 
fourteenth,  referred  chiefly  to  slavery.  No  other 
historical  facts,  though  there  are  many,  need  to  be 
cited  to  prove  that  slavery  was  the  immediate  precip- 
itating cause  of  the  Civil  War. 

THE  THIRTEENTH  AMENDMENT. 

The  thirteenth  amendment,  ratified  in  1865, 
abolishing  slavery,  was  a  legitimate  and  necessary 
result  of  the  arbitrament  of  the  sword.  Mr.  Lincoln 
at  first  declared  that  the  purpose  of  the  war,  on  the 
part  of  the  government,  was  to  preserve  the  Union 
and  not  to  free  the  slaves.  But  the  progress  of  events 
had  rendered  him  powerless  to  confine  the  struggling 
forces  of  social  upheaval  within  that  limitation — even 
if  his  personal  views  had  undergone  no  change. 

Great  was  the  relief  to  many  thoughtful  minds 
in  the  South  when  this  fruitful  cause  of  sectional  con- 
tention had  been  removed.  In  an  address  delivered 

[54] 


SLAVERY  AND  THE  RACE  PROBLEM 

from  this  platform  in  1871,  Benjamin  H.  Hill  gave 
thanks  in  fervid  metaphor  that  the  "dusky  Helen" 
had  left  the  crumbling  walls  of  Troy,  and  that 
Southern  genius,  once  "bound  like  Prometheus"  to 
the  rock  of  slavery,  had  been  loosed  from  its  bonds. 

THE  FOURTEENTH  AMENDMENT. 

The  fourteenth  amendment,  ratified  in  1868,  was 
a  combination  of  judicial  wisdom  in  the  first  section, 
of  fruitless  compromise  in  the  second  section,  and  of 
political  proscription  in  the  third  section. 

The  first  section  of  this  amendment  must  now 
be  regarded  as  one  of  the  very  best  parts  of  the  entire 
instrument.  It  gave  for  the  first  time  an  authoritative 
definition  of  United  States  citizenship,  and  forbade 
any  state  to  abridge  the  privileges  of  such  citizens  or 
to  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law,  or  to  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the 
laws.  We  had  lived  nearly  three-quarters  of  a  cen- 
tury under  a  government  that  had  no  constitutional 
or  statutory  definition  of  its  own  citizenship,  and  with 
no  sufficient  jurisdiction  in  its  courts  to  give  adequate 
protection  to  the  equal  rights  now  attaching  to  that 
citizenship. 

What  constituted  one  a  citizen  of  the  United 
States  had  long  been  a  subject  of  discussion  in  the 
public  journals,  in  the  executive  departments  and 
in  the  courts.  The  Supreme  Court,  in  the  Dred  Scott 
case  in  1857,  decided  that  a  person  of  African  descent, 

[55] 


SLAVERY  AND  THE  RACE  PROBLEM 

whether  slave  or  free,  was  not,  and  could  not  be  a 
citizen  of  a  State  or  of  the  United  States.  That  de- 
cision was,  of  course,  superseded  by  the  fourteenth 
amendment. 

This  first  section  was  profound  in  its  wisdom  and 
far-reaching  in  its  effect  upon  the  rights  of  life, 
liberty  and  property,  not  only  of  blacks  but  of  whites. 
That  eminent  Southern  jurist,  the  Hon.  Hannis  Tay- 
lor, referring  specially  to  this  section,  has  well  said: 
"From  a  purely  scientific  point  of  view  the  Constitu- 
tion of  the  United  States  never  reached  its  logical 
completion  until  after  the  adoption  of  the  fourteenth 
amendment. ' ' 

The  omission  from  the  original  Constitution  of 
a  definition  of  United  States  citizenship  and  of  a  dis- 
tinct provision  against  State  encroachment  on  equal 
rights  attaching  thereto,  carried  with  it  a  deep  signifi- 
cance. 

Few  facts  in  our  history  point  more  unerringly 
to  the  conclusion  that  in  the  minds  of  the  framers  of 
that  instrument,  the  paramount  allegiance  of  the  citi- 
zen was  to  his  State,  and  not  to  the  United  States.  It 
was  this  sense  of  duty  which  properly  constrained  Lee 
and  other  lovers  of  the  Union  to  surrender  their  high 
commissions  in  the  Federal  army  and  cast  their  for- 
tunes with  their  own  seceding  States.  Happily,  the 
future  holds  for  us  no  possibility  of  the  recurrence  of 
that  divided  allegiance. 

Historically,  under  the  Constitution,  the  South 
was  right,  both  as  to  slavery  and  secession,  but  the 

[56] 


SLAVERY  AND  THE  RACE  PROBLEM 

simple  truth  is  that  public  opinion  on  those  two  sub- 
jects had  outgrown  the  Constitution. 

No  man  contributed  more  to  the  development  of 
public  opinion  against  disunion  than  did  Mr.  Web- 
ster. When  he  made  his  great  speech  in  1830  in  re- 
ply to  Mr.  Hayne,  closing  with  that  matchless  tribute 
to  the  Union  flag :  ' '  The  broad  ensign  of  the  Republic, 
now  known  and  honored  throughout  the  world,  still 
full  high  advanced" — he  created  and  vitalized  and 
electrified  Union  sentiment  throughout  the  length 
and  breadth  of  the  land.  That  speech,  more  than 
the  word  or  deed  of  any  other  one  man,  prepared  the 
way  for  the  coming  of  Lincoln,  and  made  possible  the 
vast  armies  of  Grant.  After  all,  should  not  Webster 
be  given  first  place  in  the  Hall  of  Fame  dedicated  to 
Saviors  of  the  Union? 

THE  FIFTEENTH  AMENDMENT. 

The  fifteenth  amendment,  ratified  in  1872,  pro- 
hibited the  United  States  or  any  State,  in  prescribing 
suffrage  qualifications,  from  discriminating  against 
citizens  of  the  United  States  on  account  of  race,  color 
or  previous  condition  of  servitude.  It  did  not  confer 
the  ballot  upon  any  one — it  only  prohibited  discrim- 
ination on  account  of  a  specified  difference.  The 
right  to  vote  is  not  a  privilege  or  attribute  of  national 
citizenship  under  either  the  fourteenth  or  fifteenth 
amendment;  but  the  right  to  be  exempt  from  dis- 
crimination in  voting  on  account  of  race  is  an  at- 

[57] 


SLAVERY  AND  THE  RACE  PROBLEM 

tribute  of  national  citizenship  under  the  fifteenth 
amendment. 

This  amendment  was  at  the  time  of  its  adoption 
a  doubtful  and  dangerous  experiment — but  once 
made,  it  is  beyond  recall. 

It  embodied  a  distinct  addition  to  the  principle 
set  out  in  the  second  section  of  the  fourteenth  amend- 
ment, which  latter  impliedly  permitted  a  State  to 
deny  the  ballot  to  the  negro  if  it  were  willing  to  suffer 
the  penalty  of  a  proportionate  reduction  of  repre- 
sentation in  the  lower  house  of  Congress. 

So  far  as  the  negro  is  concerned,  the  second  sec- 
tion of  the  fourteenth  amendment  was  a  political  com- 
promise against  him,  while  the  fifteenth  amendment 
was  a  complete  declaration  of  his  equal  suffrage 
rights. 

A  resolution  for  a  fourteenth  amendment,  in  al- 
most the  identical  words  finally  used  in  this  second 
section  in  1868,  had  been  up  for  discussion  in  the 
Senate  as  early  as  1866.  Charles  Sumner  then  de- 
nounced it  as  "a  compromise  of  human  rights,  the 
most  immoral,  indecent  and  utterly  shameful  of  any 
in  our  history." 

Mr.  Elaine,  in  his  book,  "Twenty  Years  in  Con- 
gress," took  the  position  that  the  enactment  of  the 
fifteenth  amendment  operated  as  a  practical  repeal 
of  the  second  section  of  the  fourteenth  amendment. 
He  says:  " Before  the  adoption  of  the  fifteenth 
amendment,  if  a  State  should  exclude  the  negro 
from  suffrage  the  next  step  would  be  for  Con- 

[58] 


SLAVERY  AND  THE  RACE  PROBLEM 

gress  to  exclude  the  negro  from  the  basis  of  appor- 
tionment. After  the  adoption  of  the  fifteenth 
amendment,  if  a  State  should  exclude  the  negro  from 
suffrage,  the  next  step  would  be  for  the  Supreme 
Court  to  declare  the  act  was  unconstitutional  and 
therefore  null  and  void." 

Some  latter-day  statesmen,  who  have  introduced 
bills  in  Congress  to  reduce  Southern  representation, 
do  not  seem  to  agree  with  Mr.  Blaine. 

Verily,  if  the  party  of  Sumner  should  ever  aban- 
don the  vindication  of  the  fifteenth  amendment  by 
substituting  for  it  the  compromise  of  the  fourteenth 
amendment,  the  shade  of  that  eminent  statesman 
would  surely  be  moved  to  indignation  and  contempt — 
if  it  still  concerns  itself  with  mundane  political 
affairs.  Such  a  substitute-compromise  now  could 
bring  no  good  to  either  whites  or  blacks  of  the  South. 
It  would  work  evil  and  evil  only. 

SOME  REASONS  FOR  ADOPTING  THE  FIFTEENTH 
AMENDMENT. 

The  fifteenth  amendment  was  naturally  received 
with  much  bitterness  by  the  white  people  of  the 
South,  because  many  of  them  interpreted  it  to  mean 
that  our  political  enemies  of  the  North,  who  held 
control  of  the  government,  intended  thereby  to  doom 
the  South  to  perpetual  negro  domination. 

No  doubt  many  of  such  advocates  were  moved 
by  prejudice  and  hate,  but  we  of  the  South,  in  this 
day,  must  not  blind  ourselves  to  the  fact  that  this 

[59] 


SLAVERY  AND  THE  RACE  PROBLEM 

amendment  was  advocated  by  some  men  then  in  pub- 
lic life  who  were  not  controlled  by  such  base  motives, 
but  were  patriotically  striving  to  settle  a  great  funda- 
mental question  of  government  on  an  enduring 
basis. 

Let  us  not  forget  that  when  Congress  passed  the 
joint  resolution  submitting  the  fifteenth  amendment 
to  the  States  for  adoption,  the  negroes  had  already 
been  made  citizens  of  the  United  States  by  the 
fourteenth  amendment,  and  it  was  impossible  to  con- 
join that  status  of  citizenship  with  a  total  exclusion 
of  the  negro  race  from  the  ballot  without  undermin- 
ing some  of  the  foundation  principles  of  our  repre- 
sentative Eepublic. 

Bear  in  mind,  also,  that  at  the  time  when  Con- 
gress acted  on  that  resolution  in  1869,  the  negro  had 
already  exercised  the  right  of  suffrage  under  the  re- 
construction acts  of  Congress,  beginning  in  1867.  It 
was  not  under  the  fifteenth  amendment,  but  under 
the  prior  reconstruction  acts,  that  the  negroes  cast 
their  first  ballots. 

So  that  the  issue  then  was,  not  whether  to  give 
the  negroes  something  they  had  never  possessed,  but 
whether  to  deny  them  in  the  future  a  privilege  they 
had  already  actually  enjoyed. 

The  Southern  States  were  expecting  soon  to  be 
restored  to  political  autonomy.  What  stand  would 
the  white  people  of  those  States  take  as  to  the  rights 
of  their  former  slaves?  To  what  extremes  of  pillage 
and  slaughter  might  not  the  millions  of  negroes  go 

[60] 


SLAVERY  AND  THE  RACE  PROBLEM 

under  fear  of  partial  or  total  re-enslavement  ?  These 
and  other  questions  were  hard  to  answer.  To  what- 
ever point  of  the  political  horizon  the  thoughtful 
patriot  turned  his  gaze,  the  clouds  were  dark  and  por- 
tentous. A  crisis  was  at  hand.  It  had  to  be  met. 

Giving  the  ballot  to  five  million  of  newly-freed 
slaves,  of  an  inferior  or  backward  race,  ignorant, 
unaccustomed  to  do  or  think  for  themselves,  could  not 
have  been  the  deliberate  act  of  wise  statesmanship, 
but  only  the  choice  of  what  seemed  to  be  the  lesser  of 
two  evils.  In  truth,  the  whole  plan  seems  to  have 
been  an  effort  not  only  to  obliterate  at  once,  as  with 
a  stroke  of  the  pen,  all  distinctions  imposed  by  law, 
but  to  ignore  all  distinctions  imposed  by  nature. 

Many  thoughtful  men  at  the  North  are  now  of 
the  opinion  that  it  would  have  been  far  better  had  the 
military  control  in  the  South  been  continued  and 
the  ballot  withheld  for  a  time,  at  least,  from  the 
freed  men,  and  finally  bestowed  upon  them  by  de- 
grees. But  that  is  a  dead  issue  now. 

As  a  practical  measure  of  procedure,  the  fifteenth 
amendment  was  in  many  respects  harsh  and  cruel  to- 
ward the  white  people  of  the  South,  but  theoretically 
it  was  necessary  to  round  out  the  Constitution  of  a 
representative  Republic,  based  on  that  equality  of 
citizenship  before  the  law  which  had  already  been 
foreshadowed  by  the  thirteenth  and  fourteenth 
amendments. 

We  may  well  thank  God  that  the  South  has  re- 
covered from  the  immediate  shock  of  these  rough 

[61] 


SLAVERY  AND  THE  RACE  PROBLEM 

post-bellum  operations  in  political  surgery.  In  com- 
parison to  the  past: — with  its  civil  war  and  its  recon- 
struction— the  future  can  hold  no  terrors  for  us. 
Only  let  us  act  with  wisdom  and  not  lose  what  we 
have  gained  through  our  suffering. 

ANY  FUTURE  SUFFRAGE  AMENDMENT  WILL  INCREASE 
POWER  OF  CONGRESS. 

The  fifteenth  amendment  may,  by  negative  acqui- 
escence of  the  American  people,  become  for  a  time  a 
dead  letter,  but  that  three-fourths  of  the  forty-five  or 
more  States  will  ever  affirmatively  repeal  it  for  the 
purpose  of  allowing  five  or  six  Southern  States  to 
withhold  from  our  negro  citizens,  as  a  race,  the  right 
to  the  ballot,  is,  to  my  mind,  an  hallucination  too  ex- 
treme for  serious  consideration. 

If  these  post-bellum  amendments  of  the  Consti- 
tution bearing  upon  slavery  shall  ever  be  altered  by 
future  amendments,  the  alteration  will  be  in  the  di- 
rection of  placing  under  Federal  control  the  entire 
subject  of  suffrage  qualifications  in  all  National  and 
State  elections.  The  unmistakable  trend  of  our 
political  and  social  development  from  the  beginning 
of  the  government  has  been  toward  the  centre,  not 
away  from  it.  The  centripetal  force  has  been 
stronger  than  the  centrifugal  force.  Under  a  law 
of  social  gravitation  all  the  parts  have  been  drawn 
more  intimately  into  one  national  unity. 

To  suppose  that  this  national  authority  would  of 
its  own  accord  emasculate  itself  and  surrender  its 

[62] 


SLAVERY  AND  THE  RACE  PROBLEM 

own  present  consolidated  power  back  to  the  former 
diverse  elements  from  which  it  was  wrested,  would  be 
to  reverse  every  record  of  political  history,  and  to 
ignore  every  lesson  of  political  philosophy. 

Indeed,  when  the  resolution  for  the  fifteenth 
amendment  was  under  discussion  in  the  Senate  in 
1869,  an  amendment  to  that  resolution  was  offered  to 
confer  upon  Congress  the  full  power  to  prescribe  the 
qualifications  for  voters  and  officeholders,  both  in  the 
States  and  in  the  United  States. 

It  was  not  adopted  then  because  the  time  was 
not  ripe.  But  we  may  accept  it  to  be  as  certain  as 
any  future  movement  of  this  kind  can  be,  that  if  the 
Constitution  shall  be  amended  on  the  subject  of  the 
suffrage  that  amendment  will  not  restore  lost  power 
to  the  States,  but  will  confer  more  power  on  the  Na- 
tional government.  The  less  we  agitate  it  the  better. 

NUMERICAL  RELATION  OP  RACES. 
"We  have  now  reached  the  stage  in  our  discussion 
where  we  may  best  consider  what  is,  to  my  mind,  the 
most  important  factor  in  our  problem,  namely,  the 
numerical  relation  of  the  whites  and  the  blacks  of  the 
Southern  States.  Having  the  advantage  in  land- 
holdings  and  all  other  forms  of  wealth,  in  intellect, 
in  racial  pride  and  strength,  our  white  supremacy  can 
never  be  overthrown  except  by  force  of  numbers. 
For  many  years  after  the  war  we  could  not  rid  our- 
selves of  the  apprehension  that  at  some  day  in  the 
future  we  might  be  borne  down  by  numerical  ma- 

[63] 


SLAVERY  AND  THE  RACE  PROBLEM 

jorities.  These  fears  were  not  wholly  unfounded  at 
that  time. 

In  slavery,  under  the  fostering  care,  as  well  as 
the  commercial  interest  of  the  master,  the  negroes 
multiplied  in  a  greater  ratio  than  the  whites.  What 
effect  would  the  new  social  order  of  freedom  have  on 
that  ratio  of  increase?  Was  the  Caucasian  race  of 
the  South  face  to  face  with  a  pitiless  force  that  might 
gradually  but  inevitably  overwhelm  it  by  sheer 
weight  of  numbers?  If  so,  would  that  race  yield, 
or  would  it  adopt  extreme  measures  for  self-preserva- 
tion? These  were  momentous  and  perturbing  ques- 
tions. 

The  census  of  1870,  coming  first  after  the  war, 
could  give  very  little  basis  for  deduction  of  any  sort. 
But  when  the  census  figures  of  1880  were  made  known 
and  were  compared  with  those  of  1870,  that  compari- 
son revealed  a  most  ominous  situation.  Three  States, 
South  Carolina,  Mississippi  and  Louisiana,  each  had 
at  that  time  an  actual  black  majority,  and  the  per 
cent  of  gain  for  the  negroes  in  the  Southern  group  of 
States,  as  shown  by  the  statistical  experts,  was  far 
in  excess  of  that  of  the  whites,  being  34.3,  as  against 
27.5  per  cent  from  all  sources. 

JUDGE  TOURGEE'S  PROPHECIES  NOT  FULFILLED. 

Judge  Albion  W.  Tourgee,  in  his  book,  "An  Ap- 
peal to  Csesar,"  published  in  1884,  declared  that  in 

[64] 


SLAVERY  AND  THE  RACE  PROBLEM 

the  year  1900  every  State  between  Maryland  and 
Texas  would  have  a  black  majority. 

Time  has  exposed  the  falsity  of  that  prediction. 
Not  one  of  those  States  between  Maryland  and  Texas 
that  had  a  white  majority  in  1880  had  lost  it  in  1900. 
On  the  contrary,  every  such  State  increased  its  white 
majority,  while  South  Carolina,  from  1890  to  1900, 
reduced  her  negro  majority  by  2,412,  and  Louisiana 
in  the  same  period  changed  a  negro  majority  of  798 
into  a  white  majority  of  78,818. 

The  white  majority  in  the  ten  distinctively 
Southern  States  was  increased  by  1,002,662  from 
1890  to  1900.  In  the  same  period  our  white  majority 
in  Georgia  rose  from  119,542  to  146,481.  In  every 
Southern  State,  except  Mississippi,  where  peculiar 
conditions  prevailed,  the  margin  of  safety  for  white 
supremacy,  even  on  the  basis  of  numbers,  has  in- 
creased. 

These  predictions  of  negro  majorities  were  not 
confined  to  writers  of  fiction,  like  Judge  Tourgee. 
Professor  Gilliam,  a  statistician  of  high  repute,  an- 
nounced that  among  the  whites  of  the  old  slave  States 
the  rate  of  natural  increase  from  1870  to  1880  was 
20  per  cent,  while  that  of  the  blacks  in  the  same 
States  was  35  per  cent. 

With  these  figures  as  a  basis  he  reached  the  con- 
clusion that  the  6,000,000  of  Southern  blacks  in  1880 
would  increase  to  12,000,000  in  1900.  But  when  the 
census  takers  of  1900  had  counted  every  colored  man, 

[65] 


SLAVERY  AND  THE  RACE  PROBLEM 

woman  and  child  in  the  whole  United  States,  the 
total  footed  up  only  8,383,994,  which  is  3,616,006  less 
than  the  professor  had  predicted  would  be  found  in 
the  Southern  States  alone. 

Judge  Tourgee,  using  these  percentages,  given 
by  Professor  Gilliam,  argued  that  all  the  conditions 
pointed  to  a  greater  discrepancy  in  the  future. 

But  the  census  of  1900  shows  that  the  rate  of 
increase  of  the  blacks  in  the  South  Atlantic  States, 
where  the  conditions  are  most  favorable,  was  only  14.3 
per  cent  from  1890  to  1900,  instead  of  35  per  cent,  as 
reported  for  a  previous  decade,  while  that  of  the 
whites  stood  substantially  at  its  previous  record  of 
20  per  cent. 

It  is  now  an  accepted  fact  that  the  census  of  1870 
did  not  give  a  complete  enumeration  of  the  negroes  in 
the  South,  and  this  deficiency,  by  comparison  with 
the  more  accurate  census  of  1880,  necessarily  showed 
a  greater  proportionate  increase  among  the  negroes 
than  among  the  whites.  It  was  this  error  in  figures 
that  led  to  all  these  unfounded  predictions,  which 
for  a  time  hung  like  a  pall  over  the  South. 

MARGIN  OP  SAFETY  FOR  WHITE  SUPREMACY  STEADILY 

INCREASING. 

But  the  census  figures  of  1890  and  1900  supplied 
the  necessary  data  for  a  correct  comparison.  The  re- 
sulting demonstration  was  that  instead  of  the  whites 
of  the  South  being  overwhelmed  with  a  deluge  of 

[66] 


SLAVERY  AND  THE  RACE  PROBLEM 

negroes,  the  certainty  of  continued  white  supremacy 
has  steadily  increased  with  every  decade.* 

One  cause  of  this  comparative  decline  of  the 
negroes  in  numbers  is  to  be  found  in  the  fact  that  they 
have  no  source  of  supply  from  immigration,  while  the 
whites  are  receiving  constant  accessions  from  other 
States  and  from  foreign  countries.  This  influx  of 
whites,  comparatively  small  at  present,  will  un- 
doubtedly continue  and  become  larger  with  our 
growing  industrial  prosperity,  which  was  never  on 
so  firm  a  foundation  as  now.  The  completion  of  the 
Panama  canal  will  accelerate  the  development  of  our 
resources  and  give  new  impetus  to  white  immigra- 
tion, and  thus  help  vastly  in  the  solution  of  our 
problem. 


*  This  tendency  to  a  growing  majority  of  the  whites  over  the 
negroes  is  strikingly  supported  by  the  census  of  1910. 

In  the  decade  from  1900  to  1910  every  State  from  Maryland  to 
Texas  that  had  a  white  majority  in  1900  increased  that  majority ; 
and  the  two  States  (South  Carolina  and  Mississippi)  that  had  negro 
majorities  in  1900,  had  reduced  these  majorities  in  1910. 

In  South  Carolina,  the  excess  of  negroes  over  whites  in  1900 
was  224,702. 

In  1910  that  excess  was  156,286  —  showing  a  decrease  of 
68,416  in  that  decade. 

In  Mississippi  the  excess  of  negroes  over  whites  in  1900  was 
268,870.  In  1910  that  excess  was  221,860  —  showing  a  decrease  of 
47,010  in  that  decade. 

Georgia's  white  majority  of  146,257  in  1900  was  raised  to 
255,147  in  1910  —  an  increase  of  108,890. 

In  the  ten  States  bordering  the  Atlantic  and  the  Gulf  from 
Maryland  to  Texas  inclusive,  the  white  majority  in  1900  was 
3,740,037. 

In  1910  that  majority  had  increased  to  5,444,773  —  showing 
an  increase  of  1,704,736  in  that  decade. 

In  the  same  group  of  States  for  the  same  decade  the  rate  of 
increase  of  the  negroes  was  slightly  in  excess  of  10  per  cent,  while 
that  of  the  whites  was  nearly  24  per  cent. 

The  total  numerical  increase  of  the  negroes  for  the  decade 
in  that  group  of  States  was  648.598;  for  the  whites  it  was  2,453,333. 

Maryland  shows  an  actual  decrease  of  negro  population  from 
1900  to  1910  —  the  number  being  3,371. 

[67] 


SLAVERY  AND  THE  RACE  PROBLEM 

A  second  cause  of  this  comparative  decline  is  that 
the  death  rate  among  the  negroes  is  abnormally  high. 
In  typical  Southern  cities,  where  the  death  rate 
among  the  whites  stands  at  the  moderate  figures  of  10 
to  12  per  thousand,  it  reaches  among  the  negroes  from 
20  to  25  per  thousand. 

It  has  recently  been  asserted  by  some  supposedly 
competent  authorities  that  the  death  rate  of  the 
negroes  is  now  probably  in  excess  of  their  birth  rate, 
so  that  an  actual  numerical  decrease  has  set  in,  owing 
largely  to  the  ravages  of  consumption  and  certain 
other  diseases.  Nature  exacts  obedience  to  her 
laws — she  knows  neither  pity  nor  revenge. 

Professor  Wilcox  of  Cornell  University  and 
Professor  Smith  of  Tulane  University,  and  others, 
have  undertaken  a  more  far-reaching  investigation 
into  the  census  figures  and  the  facts  of  ethnological 
history,  and  have  deduced  therefrom  the  conclusion 
that  "the  negroes  will  continue  to  be  a  steadily 
smaller  proportion  of  our  population, "  and  that  in 
the  course  of  time  they  will  die  out  in  America  from 
inherent  and  natural  causes. 

Whether  these  extreme  speculations — for  they 
are  speculations — are  well  founded  or  not,  yet  the 
established  facts  as  to  the  relative  increase  of  the  races 
have  a  most  important  bearing  on  the  solution  of  our 
problem.  They  show  that  this  problem  is  not  near  so 
difficult  as  it  was  supposed  to  be  twenty  years  ago, 
when  false  prophets  were  predicting  white  submer- 
gence. 

[68] 


SLAVERY  AND  THE  RACE  PROBLEM 

And  more  important  still,  these  facts  show  that 
the  white  people  of  the  South,  and  especially  of  the 
State  of  Georgia,  can  now  proceed  to  work  out  their 
racial  problem  on  liries  of  justice  to  the  negro,  with- 
out imperilling  white  supremacy.  Those  fears  which 
once  appalled  us,  we  may  now  dismiss,  and  let  reason 
resume  its  sway. 

If  future  years  should  develop  enough  race  pride 
in  the  negroes  to  make  them  concentrate  in  one  local- 
ity, they  might  gain  ascendency  there  and  give  the 
world  a  practical  demonstration  of  their  capacity 
or  incapacity  as  a  race-force  in  civilization.  But  we 
see  no  clear  signs  of  such  a  movement  now,  and 
Georgia,  at  least,  is  in  no  danger  of  being  chosen  as 
the  Canaan  for  that  sort  of  an  experiment. 

A  WORKING  PLAN  OP  JUSTICE. 
In  seeking  a  solution  of  any  difficult  problem,  the 
first  step  should  be  to  eliminate  the  impossible 
schemes  proposed,  and  then  concentrate  on  some  line 
of  operation  that  is  at  least  possible.  We  often  hear 
the  epigrammatic  dictum  that  there  are  but  three 
possible  solutions  of  our  race  problem:  deportation, 
assimilation  or  annihilation.  When  we  bring  our 
sober  senses  to  bear,  all  three  of  these  so-called  possi- 
bilities appear  to  be  practical  impossibilities.  Not 
one  of  the  three  presents  a  working  hypothesis. 
Physical  facts,  alone,  prevent  deportation.  Physical 
facts,  stressed  by  an  ineradicable  race  pride,  bar  the 
way  against  assimilation.  Physical  facts,  backed  by 

[69] 


SLAVERY  AND  THE  RACE  PROBLEM 

our  religion,  our  civilization,  our  very  selves,  forbid 
annihilation.     We  can  not  imitate  Herod. 

This  much  seems  clear,  beyond  doubt,  that  the 
whites  are  going  to  stay  in  this  Southland  for  all  time, 
and  so  are  the  negroes  going  to  stay  here  in  greater 
or  less  proportions  for  generations  to  come.  If,  then, 
both  races  are  to  remain  together,  the  plainly  sensible 
thing  for  statesmen  of  this  day  to  do  is  to  devise  the 
best  modus  vivendi,  or  working  plan,  by  which  the 
greatest  good  can  be  accomplished  for  ourselves  and 
our  posterity.  We  of  this  day  are  not  expected  to 
overload  ourselves  with  the  burden  of  settling  all  the 
problems  of  all  future  ages.  If  we  take  good  care 
of  the  next  few  centuries,  we  may  well  be  content  to 
leave  some  matters  to  be  attended  to  by  our  remote 
posterity — aided,  of  course,  by  Providence. 

Over  against  that  Trinity  of  impossibilities — 
deportation,  assimilation  or  annihilation — let  us  of- 
fer the  simple  plan  of  justice. 

The  first  and  absolutely  essential  factor  in  any 
working  hypothesis  at  the  South,  so  far  as  human 
ken  can  now  foresee,  is  white  supremacy — supremacy 
arising  from  present  natural  superiority,  but  based 
always  on  justice  to  the  negro. 

Those  whose  stock  in  trade  is  "hating  the  nig- 
ger" may  easily  gain  some  temporary  advantage  for 
themselves  in  our  white  primaries,  where  it  re- 
quires no  courage,  either  physical  or  moral,  to  strike 
those  who  have  no  power  to  strike  back — not  even 
with  a  paper  ballot.  But  these  men  will  achieve 

[70] 


SLAVERY  AND  THE  RACE  PROBLEM 

nothing  permanent  for  the  good  of  the  State  or  of  the 
nation  by  stirring  up  race  passion  and  prejudice.  In- 
justice and  persecution  will  not  solve  any  of  the  prob- 
lems of  the  ages.  God  did  not  so  ordain  His  universe. 

Justly  proud  of  our  race,  we  refuse  to  amalga- 
mate with  the  negro.  Nevertheless,  the  negro  is  a 
human  being,  under  the  Fatherhood  of  God,  and  con- 
sequently within  the  Brotherhood  of  Man — for  those 
two  relations  are  inseparably  joined  together.  All 
soul-possessing  creatures  must  be  sons  of  God,  and 
joint  heirs  of  immortality. 

Moreover,  the  negro  is  an  American  citizen,  and 
is  protected  as  such,  by  guarantees  of  the  Constitu- 
tion that  are  as  irrepealable  almost  as  the  Bill  of 
Rights  itself.  Nor,  if  such  a  thing  as  repealing  these 
guarantees  were  possible,  would  it  be  wise  for  the 
South.  Suppose  we  admit  the  oft  re-iterated  propo- 
sition that  no  two  races  so  distinct  as  the  Caucasian 
and  the  negro  can  live  together  on  terms  of  perfect 
equality ;  yet  it  is  equally  true  that  without  some  ac- 
cess to  the  ballot,  present  or  prospective,  some  partici- 
pation in  the  government,  no  inferior  race  in  an  elec- 
tive Republic  could  long  protect  itself  against  reduc- 
tion to  slavery  in  many  of  its  substantial  forms — and 
God  knows  the  South  wants  no  more  of  that  curse. 

We  have  long  passed  the  crisis  of  the  disease 
brought  on  by  the  existence  of  slavery  in  the  blood  of 
the  Republic.  Let  us  now  build  up  the  body  politic 
in  health  and  strength,  and  guard  it  against  ever 
again  being  inoculated  with  a  poison  even  remotely 

[71] 


SLAVERY  AND  THE  RACE  PROBLEM 

resembling  that  deadly  virus.  Sporadic  cases  of 
peonage  have  already  developed  in  several  States  and 
have  been  suppressed.  Let  us  provide  against  every 
appearance  of  contagion. 

RACE  PRIDE  VERSUS  RACE  PREJUDICE. 

One  of  the  most  serious  difficulties  about  the  solu- 
tion of  our  problem  is  to  be  found  in  getting  the  domi- 
nant whites  of  the  South  to  draw  a  proper  discrimina- 
tion between  a  laudable  pride  in  our  race,  and  an  un- 
worthy prejudice  against  the  negro  race.  Prejudice 
of  any  sort  is  hostile  to  that  sound  judgment  which 
the  Creator  &ave  us  for  our  guide.  Race  prejudice 
presents  this  disturbing  element  in  one  of  its  most 
unreasoning  forms.  In  violence  it  ranks  next  to 
religious  fanaticism.  The  one  is  based  on  a  supposed 
duty  to  God;  the  other  on  a  supposed  duty  to  one's 
race-blood.  The  deeper  this  sense  of  duty,  the  more 
hardened  the  mind  against  every  appeal  to  reason. 
In  persecuting  the  early  Christians,  Paul  thought 
he  was  doing  his  duty  to  God.  The  men  who  hanged 
the  witches  in  New  England  thought  they  were  doing 
their  duty. 

So,  perhaps,  may  think  that  ex-preacher,*  who  in 
our  own  day  has  turned  playwright,  and  calling  to  his 
aid  all  the  accessories  of  the  stage  and  all  the  real- 
isms of  the  living  drama,  seeks  to  fan  into  flame  the 
fiercest  passions  of  the  whites  and  blacks.  His  chief 
purpose,  so  far  as  one  can  logically  deduce  it,  seems 
to  be  to  force  into  immediate  conflagration  combus- 


*Kev.    Thomas    Dixon. 

[72] 


SLAVERY  AND  THE  RACE  PROBLEM 

tible  materials,  which  his  heated  imagination  tells  him 
must  burn  sometime  in  the  future.  Apparently  he 
chafes  under  the  delay  of  Providence  in  bringing  on 
the  ghastly  spectacle,  and  yearns  to  witness  with  his 
own  eyes  in  the  flesh  that  reign  of  hell  on  earth  be- 
fore his  own  redeemed  soul  is  ushered  into  the  calm, 
serene  and  gentle  presence  of  Him  whose  gospel  of 
love  and  light  he  once  preached  to  erring  men. 

If  the  true  purpose  of  this  reverend  gentleman  be 
to  preserve  the  blood  of  our  race  in  its  purity  by 
creating  a  sentiment  against  intermarriage  of  the 
whites  and  blacks,  let  him  confine  his  play  to  Chicago 
and  Boston  and  New  York  and  Philadelphia  and 
other  like  places,  where  some  few  of  such  marriages 
are  said  to  occur.  As  for  us  in  the  South,  we  need 
no  artificial  stimulant  to  arouse  our  people  against 
that  sort  of  racial  intermarriage.  Our  law  forbids 
it,  and  that  is  one  law  no  man  or  woman  ever  violates. 

RACE  PURITY. 

In  this  connection  let  us  of  the  South  realize  the 
hard  fact  that  the  greatest  obstacle  to  the  preservation 
of  the  purity  of  the  blood  of  our  race,  about  which 
we  hear  so  much  in  this  day,  was  removed  when  slav- 
ery was  abolished.  That  institution,  as  indisputable 
facts  too  plainly  show,  wrought  much  contamination 
of  Caucasian  blood. 

In  Virginia  in  1630  a  white  man-servant  was 
publicly  flogged  for  consorting  with  a  negro  slave, 
and  was  required  to  make  public  confession  of  his 

[73] 


SLAVERY  AND  THE  RACE  PROBLEM 

guilt  on  the  following  Sabbath — but  clearly  the  cus- 
tom of  flogging  for  that  offense  must  soon  have  fallen 
into  " innocuous  desuetude." 

In  calmly  considering  now  the  situation  that  con- 
fronted our  statesmen  of  the  ante-bellum  period,  that 
which  most  astounds  us  is  their  apparent  failure  to 
foresee  what  would  have  been  the  inevitable  conse- 
quence of  an  indefinite  continuance  of  slavery  in  its 
effect  on  race  purity  and  on  relative  race  numbers. 
The  ratio  of  increase  of  the  negroes  was  far  in  excess 
of  the  whites.  The  great  laboring  middle  class, 
which  forms  the  backbone  of  every  nation's  pluck 
and  power,  was  fast  migrating  Westward,  and  the  re- 
maining population  was  rapidly  crystallizing  into  an 
upper  class  of  white  slave  holders  and  a  lower  class  of 
negro  slaves — the  latter  out-multiplying  their  masters 
in  numbers.  Another  one  hundred  years  of  slavery 
would  in  all  probability  have  doomed  the  South  to  ab- 
solute negro  domination  by  mere  weight  of  numbers 
whenever  emancipation  should  come — and  come  it 
was  sure  to  do  at  some  time  in  the  evolution  of  the 
elemental  forces  that  were  at  work. 

If  there  be  a  Providence  who  watches  over  the 
affairs  of  nations  and  " slumbers  not  nor  sleeps,"  we 
may  say  in  all  reverence  that  he  would  have  made 
an  almost  inexcusable  blunder  if  he  had  delayed  much 
longer  the  abolition  of  slavery. 

Social  recognition  of  the  true  dignity  of  labor, 
which  is  so  necessary  to  the  growth  of  a  vigorous  and 

[74] 


SLAVERY  AND  THE  RACE  PROBLEM 

self-respecting  middle  class,  could  not  be  maintained 
in  the  presence  of  slavery  where  manual  toil  is  so  gen- 
erally regarded  as  a  badge  of  servitude. 

NEGRO  RACE  PROJECTED  FORWARD  BEYOND 
NATURAL  DEVELOPMENT. 

When  a  subject  people  in  the  hard  school  of  ex- 
perience gradually  assert  themselves  and  evolve  from 
within  the  physical,  mental  and  spiritual  forces  that 
achieve  their  freedom,  as  did  the  Anglo-Saxons  from 
under  the  yoke  of  their  Norman  conquerors,  they 
come  forth  by  natural  growth  prepared  for  the  duties 
and  responsibilities  of  self-government. 

But  the  negro  as  a  race  had  undergone  no  such 
process  of  evolution.  His  transportation  from  Africa 
to  America  and  his  transition  from  slavery  to  free- 
dom were  both  the  results  of  external  impositions  and 
not  of  internal  development.  The  power  came  from 
without,  not  from  within.  He  did  not  win  his  free- 
dom. It  was  bestowed  upon  him. 

Granting  that  he  is  only  a  backward  member  of 
the  great  human  family,  which  as  most  evolutionists 
and  Christians  believe,  is  moving  steadily  on  toward 
the  distant  goal  of  Millennial  perfection,  yet  we 
cannot  fail  to  see  that  the  negro  race  was  suddenly 
projected  forward  into  a  stage  of  civilization  many 
generations  in  advance  of  its  own  natural  develop- 
ment. 

Is  it  any  wonder,  then,  that  the  negro  as  a  race 

[75] 


SLAVERY  AND  THE  RACE  PROBLEM 

should  not  be  altogether  fitted  to  the  laws  and  customs 
and  political  institutions  of  those  among  whom  his  lot 
was  cast? 

Again,  is  it  any  wonder  that  this  advanced  civil- 
ization should  find  it  necessary  at  times  to  apply 
sterner  penalties  for  the  curbing  of  his  savage  in- 
stincts when  he  was  freed  from  the  accustomed  con- 
trol of  his  master  ? 

Unfortunately,  soon  after  emancipation,  some  of 
the  worst  specimens  of  the  blacks  began  to  commit 
an  unpardonable  crime.  Instantly  the  white  man 
placed  over  the  door  of  his  home,  whether  it  were 
proud  mansion  or  humble  cabin,  a  warning  more  ter- 
rible in  its  meaning  than  that  which  Dante  dreamed 
he  saw  over  the  gateway  to  hell:  "Let  the  brute  who 
enters  here  leave  all  hope  behind."  In  the  presence 
of  that  crime,  men  do  not  think,  they  only  feel. 

But  how  shall  we  fix  bounds  for  those  who  rush 
madly  outside  the  limits  of  the  law?  Lynching  be- 
gan with  this  and  similar  savage  crimes.  But,  alas, 
where  will  they  all  end?  Let  us  hope  that  these  ex- 
cesses of  both  races  are  merely  incidental  factors  in  our 
problem,  and  that  they  will  soon  diminish  and  event- 
ually disappear. 

Abhorrent  as  are  the  crimes  of  some  degenerate 
members  of  the  negro  race,  we  Southern  people  can 
never  forget  the  simple  faith  and  tragic  loyalty  of 
those  thousands  of  slaves  who  guarded  and  protected 
the  women  and  children  at  home,  while  the  men  were 
at  the  front  fighting  to  drive  back  an  invading  foe 

[76] 


SLAVERY  AND  THE  RACE  PROBLEM 

whose  victory  meant  freedom  to  those  slaves  them- 
selves. 
NEGRO  MILITARY  SALUTE  CONFEDERATE  MONUMENT.. 

Nor  is  there  a  total  dearth  of  touching  incidents 
in  these  latter  days.  Only  about  a  year  or  so  ago,  a 
negro  military  company  from  Savannah  came  march- 
ing in  full  array  up  Broadway  in  Augusta.  In  front 
of  them,  rising  toward  the  sky  in  beautiful,  artistic 
proportions,  stood  a  marble  monument  erected  by  lov- 
ing women  to  the  dead  Confederacy.  At  its  base 
were  statutes  of  Lee  and  Jackson  and  Cobb  and 
Walker,  and  lifted  high  up  above  them  all  on  the  top 
of  the  towering  shaft  stood  the  statue  of  a  private 
Confederate  soldier.  No  white  military  company,  no 
camp  of  maimed  Confederate  veterans  ever  pass  that 
monument  without  giving  it  the  honor  of  a  formal 
salute. 

As  the  negro  military  comes  nearer,  one  of  two 
gentlemen  standing  in  the  doorway  of  a  building 
nearby  says :  * l  Let  us  watch  now  and  see  if  those  fel- 
lows will  salute  the  Confederate  monument. "  The 
other  gentleman  explains  that  no  salute  will  be  given 
because  it  will  not  occur  to  the  commanding  officer, 
but  that  the  omission  will  not  be  intended  as  an  af- 
front. Scarcely  are  the  words  spoken,  when  the 
negro  captain,  in  clear,  ringing  tones  that  prove  the 
sincerity  of  his  tribute,  gives  the  command  to  salute, 
and  every  black  arm  instantly  obeys  that  command. 

There  was  cheering  among  the  white  bystanders. 

When  the  great  Wade  Hampton  lay  upon  his 
[77] 


SLAVERY  AND  THE  RACE  PROBLEM 

death  bed  he  made  this  prayer:  "God  bless  all  my 
people — white  and  black: — God  bless  them  all." 

SUFFRAGE  QUALIFICATIONS. 

While  the  issue  of  political  control  under  the 
fifteenth  amendment  still  confronted  the  Southern 
States,  Mississippi,  having  the  greatest  negro  ma- 
jority, led  off  with  her  Constitution  of  1891  providing 
an  educational  qualification  for  voting.  There  being 
more  illiterate  blacks  than  illiterate  whites  in  Missis- 
sippi, the  necessary  effect  of  this  law  was  to  promote 
white  supremacy.  But  the  law  on  its  face  did  not 
discriminate  against  the  negro  on  account  of  his  race. 
It  covered  whites  and  blacks  alike. 

The  Supreme  Court  of  the  United  States 
promptly  decided  that  this  Mississippi  law  did  not 
violate  the  Federal  Constitution.  What  the  effect  of 
its  practical  administration  has  been  need  not  now  be 
discussed. 

Other  States  followed  with  similar  laws,  based 
primarily  on  educational  qualifications,  but  soon  a 
proviso  was  evolved  to  preserve  the  ballot  to  illiterate 
whites.  An  honest  administration  of  a  suffrage  law 
based  on  an  educational  qualification  would  neces- 
sarily disfranchise  a  great  many  whites.  Hence  a 
proviso  was  devised  to  the  effect  that  the  educational 
qualification  should  not  apply  to  any  person,  nor  to 
the  descendant  of  any  person,  who  could  have  voted 
at  some  past  date,  say,  for  example,  January  1,  1867, 
when  negroes  as  a  class  were  not  allowed  to  vote. 

[78] 


SLAVERY  AND  THE  RACE  PROBLEM 

This  proviso  was  popularly  known  as  the  "  Grand- 
father clause,"  because  under  it,  a  man  otherwise 
disqualified,  might,  so  to  speak,  inherit  the  right  of 
suffrage  from  his  grandfather. 

The  manifest  purpose  of  this  clause  was  to  nullify 
the  educational  requirement  of  the  State  law  as  to  the 
whites,  while  leaving  it  in  full  force  as  to  the  negroes, 
and  in  this  way  to  get  around  the  fifteenth  amendment 
of  the  Federal  Constitution,  which  forbids  discrimi- 
nation on  account  of  race. 

The  Supreme  Court  of  the  United  States  has 
gone  as  far  as  any  one  could  have  expected  it  to  go  in 
upholding  the  reserved  rights  of  the  States  on  the 
subject  of  suffrage.  But  that  court  has  never  directly 
nor  indirectly  sanctioned  the  validity  of  any  suffrage 
law  containing  the  Grandfather  clause  or  any  other 
clause  based  on  the  same  principle. 

Whenever  the  Supreme  Court  shall  take  judicial 
notice,  as  it  will  do,  of  the  historical  fact  that  on  the 
date  selected  for  the  Grandfather  clause  to  begin  to 
operate,  say  January  1,  1867,  the  negroes  as  a  class 
had  no  right  to  vote,  or  when  that  undeniable  or  easily 
proven  fact  is  made  to  appear  by  evidence,  this  device 
of  the  Grandfather  clause  must  fall  of  its  own  crook- 
edness. A  preference  to  one  race  is  necessarily  the 
legal  equivalent  of  a  discrimination  against  the  other 
race. 

It  will  mark  a  new  departure  in  American  con- 
stitutional law  when  the  right  to  vote  is  made  in- 
heritable from  the  non-transmissible  attributes  of  an 

[79] 


SLAVERY  AND  THE  RACE  PROBLEM 

ancestor  instead  of  being  based  on  the  personal  at- 
tributes of  the  voter. 

It  will  mark  a  still  further  departure  in  judicial 
construction  when  the  Supreme  Court  finds  in  this 
new  doctrine  a  legal  justification  for  sanctioning  the 
race  discrimination  forbidden  by  the  fifteenth  amend- 
ment.* 

The  Mississippi  law,  the  only  one  ever  squarely 
considered  and  directly  construed  by  the  Supreme 
Court,  170  U.  S.  213,  does  not  contain  the  Grand- 
father clause.  That  was  a  device  of  later  invention. 

The  case  of  Giles  v.  Harris,  189  U.  S.  475,  involv- 
ing the  Alabama  law,  was  dismissed  in  the  Supreme 
Court  for  want  of  jurisdiction  in  the  lower  court — but 
Justices  Brewer,  Brown  and  Harlan  dissented  in  vig- 
orous terms. 

The  latest  case,  of  Jones  v.  Montague,  194  U.  S. 


*  This    prediction    proved    true.       See     238     U.     S.    page    347: 
Guinn    v.    United    States. 

(From  The  Augusta  Chronicle,  July  20,   1915.) 

U.    S.    SUPREME    COURT    DECISION    COMPLETE    VINDICATION 
FOR    EX-CONGRESSMAN    FLEMING 


By  Unanimous  Opinion,  Written  by  Chief  Justice  White,  Himself  a 
Democrat  and  Confederate  Soldier,  the  "Grandfather"  Clause 
Declared  Unconstitutional  —  What  Mr.  Fleming  Said  in  His 
Famous  Athens  Speech  Nine  Years  Ago. 


At  the  commencement  of  the  University  of  Georgia  in  1906. 
former  Congressman  Wm.  H.  Fleming,  as  the  alumni  orator,  de- 
livered an  address  on  the  race  problem  in  the  South. 

One  of  the  points  on  which  he  antagonized  the  popular  political 
sentiment  of  that  day,  was  the  so-called  "Grandfather  clause," 
under  which  Georgia  and  other  States  were  attempting  to  dis- 
franchise the  negro. 

Mr.  Fleming  took  the  position  that  the  Supreme  Court  of  the 
United  States  would  declare  that  clause  unconstitutional,  while  many 
other  public  men  in  Georgia  seemed  disposed  to  criticise  Mr.  Fleming, 
and  assured  the  people  that  the  proposed  law  would  stand  every  test. 

[80] 


SLAVERY  AND  THE  RACE  PROBLEM 

147,  involving  the  Virginia  law,  was  dismissed  be- 
cause the  act  sought  to  be  enjoined — the  issuing  of 
certificates  of  election,  etc.,  to  members  of  Congress — 
had  already  been  done,  and  the  congressmen  had 
taken  their  seats  before  the  case  was  reached  in  the 
Supreme  Court. 

Indeed,  it  is  no  secret  that  those  lawyers  who 
undertake  to  defend  these  disfranchisement  enact- 
ments, place  their  chief  reliance  in  the  technical  diffi- 
culties of  getting  the  merits  of  the  question  before 
the  Supreme  Court.  It  goes  without  saying,  however, 
that  lawyers  can  be  found  to  surmount  those  techni- 
cal difficulties,  and  at  the  bar  of  the  Supreme  Court 
confront  the  "Grandfather"  clause  of  the  State 
Constitutions  with  the  "anti-race-discrimination'* 
clause  of  the  Federal  Constitution. 

The  result  scarcely  admits  of  a  doubt. 


How  completely  Mr.  Fleming's  legal  position  has  been  vindi- 
cated after  nine  years  of  waiting,  is  shown  by  the  following  ex- 
tracts from  his  Athens  address  and  from  the  recent  unanimous  deci- 
sions of  the  Supreme  Court  of  the  United  States  delivered  by  Chief 
Justice  White,  himself  a  Southern  man  and  a  Confederate  soldier. 


-    From    Mr.    Fleming's    address,    June    19,    1906: 

"Whenever  the  Supreme  Court  slrall  take  judicial  notice,  as  it 
will  do,  of  the  historical  fact  that  on  the  date  selected  for  the 
'Grandfather*  clause  to  begin  to  operate,  say  January  1,  1867,  the 
negroes  as  a  class  had  no  right  to  vote,  or  when  that  undeniable 
or  easily  proven  fact  is  made  to  appear  by  evidence,  this  device 
of  the  'Grandfather*  clause  must  fall  of  its  own  crookedness. 
A  preference  to  one  race  is  necessarily  the  legal  equivalent  of  a 
discrimination  against  the  other  race. 

"It  will  be  a  new  departure  in  American  constitutional  law 
when  the  right  to  vote  is  made  inheritable  from  the  non-transmissible 
attributes  of  an  ancestor,  instead  of  being  based  on  the  personal 
attributes  of  the  voter. 

"It  will  mark  a  still  further  departure  in  judicial  construction 
when  the  Supreme  Court  finds  in  the  new  doctrine  a  legal  justifica- 
tion for  sanctioning  the  race  discrimination  forbidden  by  the 
fifteenth  amendment.  *  *  *  * 

"How    long    do    the    advocates    of    this    method    of    disfranchise- 

[81] 


SLAVERY  AND  THE  RACE  PROBLEM 

DlSPRANCHISEMENT  MOVEMENT  IN  GEORGIA. 

What,  then,  shall  we,  as  Georgians  and  Ameri- 
cans, true  to  our  own  great  State,  and  true  to  the 
greater  nation  of  which  it  is  a  part,  say  of  the  move- 
ment which  is  now  being  so  freely  discussed,  and 
which  has  seemingly  gained  some  headway,  to  so 
amend  our  State  Constitution  as  to  disfranchise  the 
negroes  as  a  race? 

We  have  read  in  the  public  press  repeated  state- 
ments that  prominent  leaders  are  openly  announcing 
their  intention  to  "disfranchise  the  negro/'  and 
promising  to  "eliminate  him  from  politics."  Not 
only  so,  but  they  further  promise  to  accomplish  that 
end  through  a  so-called  educational  qualification  or 
understanding  clause,  and  at  the  same  time  not  to 
deprive  a  single  white  man  of  his  ballot,  no  matter 
how  illiterate  or  ignorant  he  may  be. 

I  might  hesitate  here  and  now,  even  at  the  last 


ment  think  they  can  expose  their  purpose  to  the  political  eye,  and 
keep  it  concealed  from  the  judicial  eye?  How  long  can  they  pro- 
claim it  on  the  hustings,  and  hush  it  in  the  courthouse?" 

"Nor  can  escape  be  found  in  that  line  of  decisions  by  the 
Supreme  Court  to  the  effect  that  the  prohibition  of  the  fifteenth 
amendment  applies  to  State  action  and  not  to  acts  of  private  citizens 
(quoting  100  U.  S.,  339). 

"This  same  principle  of  responsibility  will  be  applied  to  the 
registrars  under  this  disfranchisement  law.  Their  acts  will  be  the 
acts  of  the  State,  and  will  consequently  come  within  the  prohibition 
of  the  fifteenth  amendment,  and  will  also  be  within  the  jurisdiction 
of  the  Federal  courts,  where  alleged  violations  of  the  law  will  be 
tried." 


From  Supreme  Court  decisions,  June  21,  1915  (238  U.  S.  p.  347 
and  p. 368) : 

"It  is  true,  it  (the  Oklahoma  'Grandfather'  clause)  contains 
no  express  words  of  an  exclusion  from  the  standard  which  it  estab- 
lishes of  any  person  on  account  of  race,  color,  or  previous  condition 
of  servitude  prohibited  by  the  fifteenth  amendment,  but  the  stand- 
ard itself  inherently  brings  that  result  into  existence  since  it  is 
based  purely  upon  a  period  of  time  before  the  enactment  of  the 

[82] 


SLAVERY  AND  THE  RACE  PROBLEM 

moment,  to  proceed  further  with  the  discussion  of 
this  branch  of  my  subject  if  the  facts  as  to  intentions 
and  methods,  as  I  have  just  stated  them,  were  at  all 
in  dispute.  But  as  I  understand  it,  there  is  no  dis- 
position to  deny  them — rather,  an  increasing  boldness 
in  asserting  them.  Therefore  we  may  quite  properly, 
it  seems  to  me,  proceed  to  draw  some  necessary  deduc- 
tions from  those  admitted  facts  as  they  bear  on  the 
law  and  morals  of  the  situation. 

How,  then,  are  these  two  purposes,  to  put  out  all 
the  negroes  and  put  in  all  the  whites,  to  be  accom- 
plished in  the  face  of  the  prohibition  of  the  fifteenth 
amendment?  Clearly,  it  can  not  be  done  by  open 
avowal  in  the  body  of  the  law,  because  in  that  event, 
the  law  would  convict  itself  in  any  court  in  the  land. 
How,  then,  is  this  avowed  purpose  to  be  accomplished  ? 
Pardon  me,  my  friends,  but  let  us  face  the  truth; 
the  scheme  must  be  to  disfranchise  the  negro  by  a 
fraudulent  administration  of  the  law.  In  no  other 


fifteenth  amendment  and  makes  that  period  the  controlling  and 
dominant  test  of  the  right  of  suffrage. 

"In  other  words  we  seek  in  vain  for  any  ground  which  would 
sustain  any  other  interpretation  but  that  the  provision,  recurring  to 
the  conditions  existing  before  the  fifteenth  amendment  was  adopted, 
and  continuance  of  which  the  fifteenth  amendment  prohibited,  pro- 
posed, by  in  substance  and  effect  lifting  those  conditions  over  to  a 
period  of  time  after  the  amendment  to  make  them  the  basis  of  right 
to  suffrage  conferred  in  direct  and  positive  disregard  of  the  fifteenth 
amendment. 

"And  the  same  result,  we  are  of  opinion,  is  demonstrated  by 
considering  whether  it  is  possible  to  discover  any  basis  of  reason 
for  the  standard  thus  fixed  other  than  the  purpose  above  stated." 

"The  three  parties  (referring  to  the  plaintiffs  in  the  Maryland 
cases)  thereupon  began  these  separate  suits  to  recover  damages 
against  the  two  registering  officers  who  had  refused  to  register  them 
on  the  ground  that  they  had  been  deprived  of  a  right  to  vote 
secured  by  the  fifteenth  amendment,  and  that  there  was  liability  for 
damages  under  section  1979,  Rev.  Stat.  *  *  *  * 

"The   cases   were   then   tried   by    the   court   without    a   jury    and 

[83] 


SLAVERY  AND  THE  RACE  PROBLEM 

way  is  it  passible  to  produce  the  promised  results. 
Legislative  ingenuity  must  be  backed  up  by  adminis- 
trative fraud — else  the  avowed  purpose  cannot  be 
accomplished. 

It  must  be  admitted  that  the  machinery  of  the 
proposed  law  could  be  easily  perverted  to  fraudulent 
purposes.  Before  a  citizen  can  register  to  vote,  he  is 
to  be  required  to  read  and  explain,  or  to  be  able  to 
understand,  any  paragraph  of  the  State  Constitution. 
Now,  we  lawyers  all  know  that  there  are  some  parts  of 
our  Constitution  that  the  Supreme  Court  judges 
themselves  have  never  been  able  fully  to  explain — • 
even  granting  that  they  understand  them  all.  But 
who  are  to  judge  of  this  explanation  or  understand- 
ing? The  registrars,  of  course.  Suppose  the  most 
learned  explanation  could  be  given,  who  will  vouch 
that  the  registrars  themselves  will  understand  it,  or 
will  accept  it  as  satisfactory? 

Of  course,  the  officers  of  registration  are  to  be 
white.  An  easy  paragraph  for  a  white  applicant; 
a  difficult  paragraph  for  a  negro  applicant;  the  ac- 
ceptance of  any  sort  of  an  explanation  from  a  white 
applicant :  the  rejection  of  any  sort  of  an  explanation 


to  the  judgments  in  favor  of  the  plaintiffs  which  resulted,  these  three 
separate  writs  of  error  prosecuted.     *      *      *      * 
"Affirmed." 


Mr.  Fleming's  contention  was  that  Georgia  could  and  would 
maintain  her  white  supremacy,  without  depriving  the  negro  of  his 
rights  under  the  Federal  Constitution,  and  without  requiring  election 
or  registration  officers  to  perjure  themselves  in  the  administration  of 
the  State  law. 

If  that  can  be  done  (and  who  will  seriously  deny  it?)  then  these 
recent  decisions  of  the  Supreme  Court  ought  to  give  new  hope  and 
courage  to  all  citizens  who  believe  in  law  and  order  based  on  justice 
and  morality. 

[84] 


SLAVERY  AND  THE  RACE  PROBLEM 

from  a  negro  applicant — there  you  have  the  hidden 
cards  with  which  the  game  of  cheat  is  to  be  played. 
And  it  is  on  this  miserable,  bare-faced  scheme  of 
fraud  that  our  proud  and  noble  people  are  asked  to 
rest  their  safety  and  their  civilization. 

How  long  do  the  advocates  of  this  method  of  dis- 
franchisement  think  they  can  expose  their  purpose 
to  the  political  eye  and  keep  it  concealed  from  the 
judicial  eye?  How  long  can  they  proclaim  it  on  the 
hustings  and  hush  it  in  the  court  house? 

Referring  to  one  of  these  laws,  a  learned  com- 
mentator on  our  Supreme  Court  decisions  has  said: 
"If  in  the  light  of  their  history  and  conditions  and 
the  avowed  purpose  of  the  authors  of  the  laws,  their 
objects  are  clothed  in  statutes  so  worded  that  the 
real  designs  are  not  expressed  in  terms,  the  situation 
would  seem  to  be  one  to  require  the  court  to  reason 
from  cause  to  effect." 

The  court,  in  construing  the  fourteenth  amend- 
ment (118  U.  S.  356),  had  said:  "Though  the  law  it- 
self be  fair  on  its  face  and  impartial  in  appearance, 
yet  if  it  be  applied  and  administered  by  public  au- 
thority with  AN  EVIL  EYE  AND  AN  UNEQUAL  HAND  SO  as 

practically  to  make  unjust  and  unequal  discrimina- 
tions between  persons  in  similar  circumstances,  ma- 
terial to  their  rights,  the  denial  of  equal  justice  is  still 
within  the  prohibition  of  the  Constitution. " 

Nor  can  escape  be  found  in  that  line  of  decisions 
by  the  Supreme  Court  to  the  effect  that  the  prohibi- 
tion of  the  fifteenth  amendment  applies  to  State 

[85] 


SLAVERY  AND  THE  RACE  PROBLEM 

action  and  not  to  acts  of  private  citizens.  The 
registrars  who  are  to  enforce  this  disfranchisement 
law  are  officers  and  agents  of  the  State.  The  Su- 
preme Court  (100  U.  S.  339)  has  further  said: 
11  Whoever  by  virtue  of  his  public  position  under  a 
State  government,  deprives  another  of  life,  liberty  or 
property  without  due  process  of  law,  or  denies  or 
takes  away  the  equal  protection  of  the  law,  violates 
the  inhibition  of  the  fourteenth  amendment,  and  as  he 
acts  in  the  name  of,  and  for,  the  State  and  is  clothed 
with  her  power,  HIS  ACT  is  HER  ACT." 

This  same  principle  of  responsibility  will  be  ap- 
plied to  the  registrars  under  this  disfranchisement 
law.  Their  acts  will  be  the  acts  of  the  State,  and 
will  consequently  come  within  the  prohibition  of  the 
fifteenth  amendment,  and  will  also  be  within  the  juris- 
diction of  the  Federal  courts,  where  alleged  violations 
of  the  law  will  be  tried.* 

But  aside  from  these  legal  aspects  of  the  matter, 
let  us  ask  ourselves  if  there  is  not  a  more  serious 
practical  difficulty  to  be  overcome.  These  registrars, 
as  officers,  must  take  the  usual  oath  to  perform  their 
duties  impartially  under  the  law.  Let  us  put  the 
plain,  blunt  question :  How  many  counties  in  Georgia 
can  be  relied  on  to  furnish  three  citizens  for  registrars 
who  will  agree  in  advance  to  violate  their  solemn 
oaths  ?  Will  not  honest  men  point  at  them  the  finger 
of  scorn? 


*  This    prediction    proved     true.       See    238    U.     S.     page     368: 
Myers   v.    Anderson. 

[86] 


SLAVERY  AND  THE  RACE  PROBLEM 

The  great  John  C.  Calhoun  sought  to  nullify  a 
Federal  statute  law  on  the  tariff  by  State  action  be- 
cause he  believed  it  to  be  in  violation  of  the  Federal 
Constitution,  which  he  loved  and  honored. 

But  these  latter-day  nullifiers  are  seeking  to  nul- 
lify the  Federal  Constitution  by  a  State  law — no,  not 
by  a  State  law  itself,  but  by  the  fraudulent  administra- 
tion of  a  State  law.  No  power  on  earth  could  have 
made  Mr.  Calhoun  stoop  to  such  chicanery — he  was 
fashioned  in  a  nobler  mould.  What  a  contrast  be- 
tween the  great  nullifier  and  these  little  nullifiers ! 

The  abuses  to  which  the  broad  discretionary 
powers  of  the  registrars  under  these  disfranchisement 
laws  might  be  carried  in  times  of  fierce  partisan  poli- 
tics are  absolutely  unlimited.  We  need  not  flatter 
ourselves  that  white  men  will  never  be  the  victims  of 
such  abuses.  When  moral  character  is  once  defiled 
and  fraud  seeks  its  own  selfish  ends,  it  will  not  stop  at 
the  color  line. 

ONE   DANGER  IN   EDUCATIONAL   QUALIFICATION. 

There  can  be  no  legal  objection,  whenever  the 
public  necessity  requires  it,  to  establishing  a  reason- 
able educational  qualification  for  voters,  provided 
that  qualification  is  fairly  and  honestly  applied.  But 
if  this  educational  qualification  is  to  be  used  as  a 
fraudulent  subterfuge  to  disfranchise  the  negro,  then 
there  is  another  very  serious  consequence  which  will 
necessarily  follow. 

If  by  appeals  to  race  prejudice  and  fear  these 

[87] 


SLAVERY  AND  THE  RACE  PROBLEM   , 

negro  disfranchises  establish  the  educational  test  in 
fulfilment  of  their  promise  to  "eliminate  the  negro 
from  politics,"  then  of  necessity,  these  same  leaders 
and  their  followers  must  recognize  that  from  their 
point  of  view  it  is  not  the  IGNORANT,  but  the  EDUCATED 
negroes  who  will  be  the  most  dangerous  political 
enemies  of  the  whites. 

The  question  will  at  once  arise,  why  should  the 
white  people  create  dangerous  political  enemies  by 
allowing  the  negroes  to  be  educated?  Why  not 
"eliminate  them  from  politics"  by  keeping  them  in 
ignorance  ?  There  is  no  escape  from  the  logic  of  this 
argument  if  the  premise  be  correct.  Thus  we  would 
find  ourselves  committed  to  the  degrading  policy  of 
enforcing  ignorance  on  a  weaker  race,  with  its  attend- 
ant results  of  peonage  and  semi-slavery,  from  which 
all  good  men  would  pray  for  deliverance. 

DIVISION  OF  SCHOOL  FUNDS  ON  RACE  LINES. 

Even  now  there  are  signs  of  a  movement  in 
Georgia  to  give  the  negro  schools  only  that  pittance 
of  money  arising  from  the  negro's  taxes.  A  law  to 
that  effect  has  already  been  declared  invalid  by  the 
State  court  in  North  Carolina  (94  N.  C.  709) ;  also  by 
the  State  court  in  Kentucky  (83  Ky.  49)  ;  and  also 
by  the  Federal  court  in  three  decisions  from  Kentucky 
(16  Fed.  R.  p.  297;  23  Fed.  R.  634,  and  72  Fed.  R. 
689.) 

In  our  own  State  a  bill  to  the  same  effect  was 
passed  in  1888  for  a  local  school  system,  and  Governor 

[88] 


SLAVERY  AND  THE  RACE  PROBLEM 

John  B.  Gordon,  while  Hon.  Clifford  Anderson  was 
attorney  general,  vetoed  it  on  the  ground  that  it  was 
against  sound  policy  and  a  violation  of  the  Constitu- 
tion of  the  State  and  the  United  States. 

There  is  nothing  in  the  decision  of  our  State 
Supreme  Court  in  the  Eatonton  case  (80  Ga.  755) 
nor  in  the  Richmond  County  High  School  case  (103 
Ga.  641)  to  sustain  the  proposition  that  the  common 
school  funds  of  the  State,  or  of  any  subdivision  of 
the  State,  can  be  divided  between  the  races  in  propor- 
tion to  the  property  or  taxes  of  each.  On  the  con- 
trary, in  the  latter  case,  our  State  court  said:  "So 
far  as  the  record  discloses,  both  races  have  the  same 
facilities  of  attending  them"  (the  free  common 
schools).  And  the  United  States  Supreme  Court, 
in  reviewing  this  Georgia  case  (175  U.  S.  528),  say  it 
is  an  admitted  principle  of  law  that  the  ' '  benefits  and 
burdens  of  public  taxation  must  be  shared  by  citizens 
without  discrimination  against  any  class  on  account 
of  their  race." 

Along  this  same  line  spoke  Governor  Charles  J. 
Jenkins,  known  to  Georgians  as  the  "Noblest  Roman 
of  Them  All, ' '  when  he  took  the  chair  as  president  of 
the  Constitutional  convention  of  1877.  He  said: 

"I  utter  no  caution  against  class  legislation  or 
discrimination  against  our  citizens  of  African  descent. 
I  feel  a  perfect  assurance  that  there  is  no  member  of 
this  body  who  would  propose  such  action,  and  if  there 
were,  he  would  soon  find  himself  without  a  follow- 


ing." 


[89] 


SLAVERY  AND  THE  RACE  PROBLEM 

These  are  the  words  of  a  high-minded  states- 
man— not  of  a  time-serving  politician.  There  are 
many  differences  between  these  two  types  of  public 
men.  One  difference  is  that  a  politician  seeks  to 
find  out  what  public  opinion  is  and  hastens  to  follow 
it,  while  a  statesman  seeks  to  find  out  what  public 
opinion  ought  to  be  and  helps  to  mould  it. 

Our  late  Chancellor  Hill,  whose  untimely  death 
is  so  deeply  deplored  by  us  all,  belonged  to  that  higher 
class  of  moulders  of  public  opinion.  By  example,  as 
well  as  by  precept,  he  led  the  way  to  the  nobler  ends 
of  life. 

SHOULD  GEORGIA  FOLLOW  OTHER  STATES? 

Surely  nothing  but  the  direst  necessity  of  self- 
preservation  could  induce  any  people  to  resort  to  such 
suffrage  expedients  as  are  now  being  proposed  to  the 
people  of  Georgia.  Nothing  less  than  an  impending 
overthrow  of  white  civilization  by  negro  domination 
could  excuse  such  extreme  measures.  But  if  our  dis- 
cussion has  shown  anything,  it  has  shown  that 
Georgia  is  not  now  in  danger  of  negro  domination. 

One  argument  that  is  being  pressed  upon  our 
people  is  that  Georgia  should  follow  the  example  of 
other  Southern  States  that  have  passed  similar  dis- 
franchisement  laws.  But  let  us  ask,  why  should 
Georgia  follow  them?  Is  there  anything  in  their 
examples  on  this  subject  worthy  of  our  imitation? 
If  their  necessities  compelled  such  questionable  ac- 
tion, let  us  sympathize  with  them  in  their  extremity. 

[90] 


SLAVERY  AND  THE  RACE  PROBLEM 

But  let  us  not  imitate  them  when  no  such  necessity 
besets  us.  Did  not  Georgia  first  redeem  herself  after 
reconstruction?  Has  she  not  kept  abreast  of  her 
sister  States  in  material,  intellectual  and  moral  prog- 
ress ?  Is  she  not  still  the  Empire  State  of  the  South  ? 
What  State  can  show  a  cleaner  official  record  for 
thirty  years?  Bather  let  Georgia  continue  to  lead  in 
wise  and  conservative  statesmanship.  On  all  funda- 
mental questions  our  white  people  are  sufficiently 
united  in  thought  and  purpose  to  come  together  in 
a  solid  phalanx  if  the  negroes  should  ever  return  to 
the  ballot  box  in  sufficient  numbers  on  one  side  of  an 
issue  to  jeopardize  the  public  safety. 

As  a  legal  means  of  maintaining  white  suprem- 
acy, no  plan  yet  devised  approaches  in  effectiveness 
our  party  primary  system,  in  combination  with  the 
cumulative  poll  tax  provision  of  the  Constitution. 

Whatever  may  be  the  final  political  status  of  the 
negro,  we  are  now  undeniably  in  a  transition  stage  of 
evolution.  It  is  scarcely  conceivable  that  the  condi- 
tions created  by  the  disfranchisement  laws  of  some 
Southern  States  can  be  permanent.  The  battle  for 
supremacy  between  those  laws  and  the  Federal  Con- 
stitution remains  to  be  fought  out.  If  the  Federal 
Constitution  proves  victorious,  as  it  is  very  apt  to  do, 
then  the  entire  electoral  system  of  these  States  may 
have  to  be  changed. 

On  the  other  hand,  Georgia,  through  her  superior 
statesmanship,  has  put  herself  in  a  position  of  safety, 
ready  to  take  advantage  of  whatever  hopeful  devel- 

[91] 


SLAVERY  AND  THE  RACE  PROBLEM 

opments  the  future  may  unfold.  She  has  violated 
no  Federal  law.  She  has  maintained  white  suprem- 
acy with  the  least  possible  friction,  and  can  continue 
to  so  maintain  it. 

Not  only  is  this  campaign  against  the  negro 
unnecessary  and  unjust,  but  it  is  most  inopportune 
at  this  juncture.  When  every  County  in  the  State  is 
calling  loudly  for  more  labor  to  serve  the  household 
and  till  the  fields  and  develop  our  resources,  why 
should  we  seek  to  enact  more  oppressive  laws  against 
the  labor  we  now  have? 

We  do  not  know  what  shifting  phases  this  vexing 
race  problem  may  assume,  but  we  may  rest  in  the 
conviction  that  its  ultimate  solution  must  be  reached 
by  proceeding  along  the  lines  of  honesty  and  justice. 
Let  us  not  in  cowardice  or  in  want  of  faith,  needlessly 
sacrifice  our  higher  ideals  of  private  and  public  life. 
Eace  differences  may  necessitate  social  distinctions. 
But  race  differences  can  not  repeal  the  moral  law. 

THE  MORAL  LAW — ITS  ORIGIN  AND  SANCTION. 

What  is  this  thing  we  call  the  moral  law  ?  Is  it  a 
mere  weak  sentiment,  suitable  only  for  children  and 
preachers  and  Sunday  school  teachers?  Or  is  it  the 
fiat  of  Nature  and  Nature's  God,  commanding  obedi- 
ence from  all  men  under  the  sanction  of  inevitable 
penalties?  We  will  waive  all  questions  as  to  weight 
of  authority,  and  reason  out  the  matter  for  ourselves. 

Whence  come  our  morals  or  ethical  conceptions? 
Briefly  let  us  summarize : 

[92] 


SLAVERY  AND  THE  RACE  PROBLEM 

First:  The  theological  school  rests  the  founda- 
tion of  morals  on  divine  commandment  or  revelation, 
which  quickens  the  conscience. 

God  spake  through  Moses,  the  Prophets  and  the 
Christ. 

Second:  The  psychological  school  traces  the 
source  of  morals  to  an  instinct  or  sense  that  is  innate 
in  the  mind  itself — the  conscience. 

The  philosopher  and  metaphysician,  Immanuel 
Kant,  reasoned  back  to  his  celebrated  postulate  of  a 
"categorical  imperative"  call  to  duty. 

Third:  The  utilitarian  school  evolves  morals 
from  human  experience,  sanctioning  as  "good"  or 
"right"  that  conduct  which  has  proven  beneficial, 
and  condemning  as  "bad"  or  "wrong"  that  conduct 
which  has  proven  injurious,  thus  creating  and  devel- 
oping the  conscience  by  successive  stages  of  experi- 
mental knowledge. 

Herbert  Spencer  thus  evolved  his  system  of 
utilitarian  ethics  till  it  almost  flowered  out  in  the 
beauty  of  the  "Golden  Rule." 

Professor  Huxley,  discussing  the  scientific  doc- 
trine of  causation,  says :  ' '  The  safety  of  morality  lies 
in  a  real  and  living  belief  in  that  fixed  order  of  nature 
which  sends  social  disorganization  upon  the  track  of 
immorality  as  surely  as  it  sends  physical  disease 
after  physical  trespassers." 

It  is  not  necessary  for  us  to  determine  how  much 
of  truth  there  is  in  each  of  these  schools  of  thought. 
Enough  for  us  to  know  that  all  three  reach  substan- 

[93] 


'  SLAVERY  AND  THE  RACE  PROBLEM 

tially  the  same  conclusion  as  to  right  rules  of  conduct 
for  men.  By  different  routes  they  arrive  at  the  same 
goal.  In  reasoning  they  are  three ;  in  acting  they  are 
one.  Here  is  a  subject  on  which  religion  and  science 
are  in  full  accord,  namely,  that  the  moral  law  is  the 
wisest  rule  of  human  conduct. 

So  much  for  the  individual  man. 

THE  MORAL  LAW  APPLIES  TO  STATES  AS  WELL  AS 
TO  INDIVIDUALS. 

Now,  does  the  same  moral  law  apply  to  States 
and  Nations  as  well  as  to  individuals?  Or  are  there 
two  codes  of  morality,  one  for  individuals  and  another 
for  aggregations  of  individuals?  Can  we  practice 
fraud  as  a  collective  body  of  citizens  and  still  preserve 
our  personal  integrity  as  individual  citizens? 

We  might  quote  Mr.  Jefferson  as  an  authority 
for  the  doctrine  that  "moral  duties  are  as  obligatory 
on  nations  as  on  individuals."  But  again  let  us 
waive  authority  and  reason  out  our  own  conclusions. 
We  will  test  the  question  by  the  standards  of  the  three 
schools  of  thought  first  named. 

If  we  assume  that  the  theological  school  is  correct, 
it  is  manifest  that  there  can  not  be  a  code  of  public 
morals  different  in  principle  from  the  code  of  private 
morals.  God  must  deal  with  individuals  and  nations 
alike,  because  the  former  are  the  responsible  units  of 
the  latter. 

If  we  assume  that  the  psychological  school  is  cor- 
rect, it  is  equally  manifest  that  the  conscience,  being 

[94] 


SLAVERY  AND  THE  RACE  PROBLEM 

an  innate  mental  quality,  cannot  reverse  its  action 
by  changing  from  private  to  public  capacity,  from  in- 
dividual to  collective  functions. 

If  we  assume  that  the  utilitarian  school  is  cor- 
rect, it  ought  to  be  equally  as  clear  that  the  rule  of 
conduct  which  experience  has  proven  to  be  beneficial 
as  between  individuals,  is  also  beneficial  as  between 
States  under  like  conditions. 

It  is  true  that  aggregations  of  individuals,  by 
reason  of  divided  responsibility,  do  not  usually  act  up 
to  the  code  of  morals  recognized  by  single  individuals. 
That  historical  fact  shows  the  imperfection  of  our 
past  civilization,  and  calls  upon  us  for  better  work 
in  the  future.  No  one  accepts  the  condition  as  per- 
manent or  satisfactory.  The  great  task  of  civiliza- 
tion, the  dearest  hope  of  philosophers  and  noble- 
minded  statesmen,  is  to  constantly  improve  that 
condition  and  bring  nations  more  under  the  sway  of 
the  moral  law.  Though  perfection  be  unattainable, 
every  step  is  progress. 

In  proportion  as  international  intercourse  be- 
comes more  free  will  a  code  of  international  ethics, 
based  on  a  code  of  personal  ethics,  be  developed,  to 
the  immeasurable  advantage  of  all  concerned.  Such 
is  the  doctrine  underlying  The  Hague  tribunal,  which 
has  already  done  so  much  for  the  peace  of  the  world. 

One  of  the  noblest  tributes  ever  paid  to  Gladstone 
was  that  he  had  applied  the  moral  law  to  British  poli- 
tics. 

It  was  Aristides,   surnamed  the  Just — a  brave 

[95] 


SLAVERY  AND  THE  RACE  PROBLEM 

soldier,  a  successful  general,  a  man  of  sound  practical 
judgment,  not  a  mere  dreamer — who,  when  named  by 
the  Athenians  to  consider  a  secret  plan,  suggested  by 
Themistodes,  to  gain  naval  supremacy  for  Athens  by 
burning  the  ships  of  her  allies,  reported  against  the 
unscrupulous  scheme  and  said:  "What  Themistodes 
proposes  might  be  to  your  present  advantage,  but  0 
Athenians,  it  is  not  just. ' ' 

Speaking  of  the  ideal,  universal,  moral  code,  one 
of  the  least  sentimental  of  modern  scientific  writers 
says :  ' '  Although  its  realization  may  lie  in  the  unseen 
future,  civilization  must  hold  fast  to  it,  if  it  would 
be  any  more  than  a  blind  natural  process;  and  it  is 
certainly  the  noblest  function  of  social  science  to 
point  out  the  wearisome  way  along  which  mankind, 
dripping  with  blood,  yet  pants  for  the  distant  goal/' 

Another  deep  thinker,  summing  up  the  facts  of 
history  and  the  reasonings  of  philosophers,  says: 
"That  the  moral  law  is  the  unchanging  law  of  social 
progress  in  human  society  is  the  lesson  which  ap- 
pears to  be  written  over  all  things/' 

SOLUTION  OF  RACE  PROBLEM  :  GIVE  NEGRO  JUSTICE. 

The  foundation  of  the  moral  law  is  justice.  Let 
us  solve  the  negro  problem  by  giving  the  negro  jus- 
tice and  applying  to  him  the  recognized  principles 
of  the  moral  law. 

This  does  not  require  social  equality.  It  does 
not  require  that  we  should  surrender  into  his  inex- 
perienced and  incompetent  hands  the  reins  of  politi- 

[96] 


SLAVERY  AND  THE  RACE  PROBLEM 

cal  government.  But  it  does  require  that  we  recog- 
nize his  fundamental  rights  as  a  man,  and  that  we 
judge  each  individual  according  to  his  own  qualifica- 
tions, and  not  according  to  the  lower  average  char- 
acteristics of  his  race.  Political  rights  can  not  justly 
be  withheld  from  those  American  citizens  of  an  in- 
ferior or  backward  race  who  raise  themselves  up  to 
the  standard  of  citizenship  which  the  superior  race 
applies  to  its  own  members. 

It  is  true  that  the  right  of  suffrage  is  not  one  of 
those  inalienable  rights  of  man,  like  life,  liberty  and 
the  pursuit  of  happiness,  as  enumerated  in  the  Decla- 
ration of  Independence,  but  the  right  of  exemption 
from  discrimination  in  the  exercise  of  suffrage  on 
account  of  race,  is  one  of  the  guaranteed  constitu- 
tional rights  of  all  American  citizens. 

We  of  the  South  are  an  integral  part  of  this 
great  country.  We  should  stand  ready  to  make  every 
sacrifice  demanded  by  honor  and  permitted  by  wis- 
dom to  remove  the  last  vestige  of  an  excuse  for  the 
perpetuation  of  that  spirit  of  sectionalism  which  ex- 
cludes us  from  the  full  participation  in  govern- 
mental honors  to  which  our  brain  and  character  en- 
title us. 

Let  us  respect  the  National  laws  to  the  limit  of 
endurance,  and  if  that  limit  should  be  passed,  let  us 
resort  to  some  means  of  redress  more  typical  of 
Southern  manhood  than  fraudulent  subterfuge.  The 
future  material  prosperity  of  the  South  is  already 
assured.  Let  us  resolve  that  there  shall  remain  in- 

[97] 


SLAVERY  AND  THE  RACE  PROBLEM 

grained  in  the  moral  fibre  of  our  New  South  the  high 
character  of  our  Old  South — which  can  best  be  de- 
scribed in  the  memorable  words  of  Edmund  Burke  as 
"that  sensibility  of  principle,  that  chastity  of  honor 
which  felt  a  stain  like  a  wound." 

We  cannot  afford  to  sacrifice  our  ideas  of  justice, 
of  law  and  of  religion  for  the  purpose  of  preventing 
the  negro  from  elevating  himself.  If  we  wish  to  pre- 
serve the  wide  gap  between  our  race  and  his  in  the 
onward  progress  of  civilization,  let  us  do  it  by  lifting 
ourselves  up,  not  by  holding  him  down. 

If,  as  some  predict,  the  negro  in  the  distant 
future  must  fail  and  fall  by  the  wayside  in  the  strenu- 
ous march  of  the  nations,  let  him  fall  by  his  own  in- 
feriority, and  not  by  our  tyranny.  Give  him  a  fair 
chance  to  work  out  what  is  in  him. 

Carl  McKinley,  that  brilliant  and  noble-hearted 
author  of  "An  Appeal  to  Pharaoh,"  who  advocated 
so  earnestly  and  so  eloquently  the  impracticable  pol- 
icy of  deportation,  declared  himself  on  this  subject  as 
follows : 

"We  should  have  learned  by  this  time  moreover, 
that  we  cannot  treat  the  negro  with  injustice,  however 
disguised,  without  sharing  the  consequences  with  him. 
*  *  *  It  would  be  a  foul  wrong  to  beat  him  back 
in  his  upward  struggle,  and  consign  him  to  a  lower 
plane  and  establish  him  on  it. ' ' 

If  the  negro  as  a  race  is  to  be  disfranchised  re- 
gardless of  the  personal  qualifications  of  meritorious 
individual  members  of  that  race,  consider  for  a  mo- 

[98] 


SLAVERY  AND  THE  RACE  PROBLEM 

ment  some  of  the  changes  we  must  make  in  many  of 
the  fundamental  doctrines  lying  at  the  base  of  our 
government.  The  revised  version  of  our  political 
Bible  would  have  to  read  something  like  this:  "No 
taxation  without  representation — except  as  to  ne- 
groes;" "equal  rights  to  all — except  as  to  negroes;" 
"all  men  are  created  equal — except  as  to  negroes." 

No  RECANTATION  OF  JEFFERSON'S  DOCTRINE. 

Some  modern  critics  seriously  suggest  that  we 
should  amend  that  paragraph  of  the  Declaration  of 
Independence  which  asserts  the  equal  rights  of  men, 
so  as  to  adjust  it  more  accurately  to  historical  and 
scientific  facts.  But  that  epoch-making  document 
needs  no  alteration  upon  the  subject  of  human  rights 
when  interpreted  as  it  was  intended  to  be  interpreted 
by  the  man  who  drafted  it.  Mark  you,  Mr.  Jefferson 
did  not  write  '  *  All  men  are  born  free, ' '  as  the  quota- 
tion is  sometimes  given.  That  looser  language  is 
found  in  the  Constitution  of  Massachusetts,  not  in  the 
Declaration  of  Independence.  Such  an  assertion 
would  have  been  disproved  by  the  historical  fact  of 
slavery  then  existing.  What  Mr.  Jefferson  wrote! 
was:  "All  men  are  created  equal."  That  is  to  say, 
not  equal  in  exterior  circumstances,  nor  in  physical 
or  mental  attributes,  but  equal  in  the  sight  of  God 
and  just  human  law,  in  their  inalienable  rights  to 
life,  liberty  and  the  pursuit  of  happiness.  Americans 
want  no  recantation  of  that  declaration.  It  is  the 
political  corollary  of  the  Christian  doctrine  of  the 

[99] 


SLAVERY  AND  THE  RACE  PROBLEM 

justice  and  the  Fatherhood  of  God.  Let  it  stand  as 
it  was  penned  by  Jefferson,  an  ennobling,  even  though 
unattainable,  ideal,  demanded  by  the  spiritual  nature 
of  man — one  of  those  ideals  that  have  done  more  to 
lift  up  humanity  and  to  build  up  civilization  than  all 
the  gold  from  all  the  mines  of  all  the  world. 


[100] 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWB 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  o. 
on  the  date  to  which  renewed, 
d  boUs  ate  subjecttommediateecaU. 


General  Library 
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